Gujarat High Court
State Of Gujarat vs Ramdas Laljibhai Tandel (Detective ... on 10 September, 2024
NEUTRAL CITATION
R/CR.A/212/2008 JUDGMENT DATED: 10/09/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 212 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
==================================================
1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or
any order made thereunder ?
==================================================
STATE OF GUJARAT
Versus
RAMDAS LALJIBHAI TANDEL (DETECTIVE INSPECTOR)
==================================================
Appearance:
MS. C.M.SHAH, APP for the Appellant(s) No. 1
MR ZUBIN F BHARDA for the Opponent(s)/Respondent(s) No. 1
==================================================
CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 10/09/2024
ORAL JUDGMENT
1] This appeal has been filed by the appellant - State under
Section 378(1)(3) of the Code of Criminal Procedure, 1973
against the judgment and order of acquittal dated 15/01/2007
passed by the learned Presiding Officer, Special Court, Surat
(hereinafter referred to as the learned trial Court) in Special
NEUTRAL CITATION
R/CR.A/212/2008 JUDGMENT DATED: 10/09/2024
undefined
(ACB) Case No. 9 of 2001, whereby, the learned trial Court
was pleased to acquit the respondent from the offences
punishable under Sections 7, 13(1)(d) and 13(2) of the
Prevention of Corruption Act (herein after referred to as 'the
P.C.Act'). The respondent 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] The accused Ramdas Laljibhai Tandel was working
as a Detective Inspector at the octroi Check Post, Puna in the
year 2000 and was a public servant. The complainant Ajabsinh
Mulsinh Rathod, Police Inspector, ACB Police Station, Surat had
concrete information that the employees and officers of Surat
Mahanagarpalika at the octroi Check Post, under various
pretexts were collecting illegal gratification from the drivers of
vehicles and to verify the same the complainant decided to
arrange for a decoy trap. The complainant called two panch
witnesses and one Manojkumar Fulchand Sharma residing in
the house of Parvat Kaka, opposite the vegetable Market, 32
NEUTRAL CITATION
R/CR.A/212/2008 JUDGMENT DATED: 10/09/2024
undefined
Room Building, Puna Village, Taluka Choryasi, District Surat
and he was explained about the decoy trap and he agreed to
cooperate. The panch witnesses and the decoy were introduced
to the members of the raiding party and ASI Manilal was given
₹1000/-, which consisted of one currency note of the
denomination of ₹500/-, four currency notes of the denomination
of ₹100/- each and two currency notes of the denomination of
₹50/- each and the demonstration of anthracene powder and
ultraviolet lamp was conducted in the presence of the panch
witnesses and the characteristics of anthracene powder and
ultraviolet lamp was explained to the panch witnesses. All the
currency notes were smeared with anthracene powder by ASI
Manilal and placed in the left pant pocket of the decoy and
necessary instructions were given to the decoy and the panch
witnesses. The panchnama Part I was drawn and the panch
witnesses and the Trap Laying Officer affixed their signatures
on the panchnama Part I. The panch witnesses, the decoy and
members of the raiding party sat in government jeep No..GJ-1-G-
3754 and left from the ACB office to Ring Road, Sahara Gates
and went onto to the Sardar Market Road to Puna village at the
NEUTRAL CITATION
R/CR.A/212/2008 JUDGMENT DATED: 10/09/2024
undefined
Check Post of Surat Mahanagarpalika and halted the vehicle
near NG Complex on the Surat Kadodra Road. They waited for a
tempo and halted a three wheel tempo, which was loaded with
marble bars and the driver was Gordhanbhai Surajmal Khatri,
residing at Room No. 15, Subash Nagar, Puna Village, Taluka
Choryasi District: Surat and the tempo had registration No. GJ-
5-V-1289. The panch No. 1, the decoy Manojkumar Fulchand
Sharma and driver Gordhanbhai Surajmal Khatri of the three
wheel tempo No. GJ-5-V-1289 sat in the tempo and the panch
No. 2 and other members of the raiding party sat in government
jeep No. GJ-1-G-3754 and went to the octroi Check Post at Puna
and the decoy and the panch No. 1 went to window number
three, and the decoy, and the accused had a conversation and
the accused demanded an amount of ₹200/- as illegal
gratification. The decoy took ₹200/- from the tainted currency
notes and gave to the accused and the decoy gave the
predetermined signal, and the members of the raiding party
came and caught the accused. The tests were conducted and the
tainted currency notes were recovered from the possession of
the accused and the panchnama Part-II was drawn and the Trap
NEUTRAL CITATION
R/CR.A/212/2008 JUDGMENT DATED: 10/09/2024
undefined
Laying Officer and the panch witnesses affixed their signatures
on the panchnama Part-II. The complainant Aajasinh Mulsinh
Rathod Police Inspector, ACB Police Station, Surat filed the
complaint at ACB Police Station, Surat under Sections 7, 13(1)
(d) and 13(2) of the PC Act, which was registered at Surat ACB
Police Station being C.R.No. 14 of 2000 on 28/12/2000.
2.2] The Investigating Officer recorded the statements of
the connected witnesses and after the documents were seized,
including the service record of the accused and the order of
sanction for prosecution, a charge sheet was filed before the
Session Court, Surat, which was registered as special ACB case
No. 9 of 2001.
2.3] The accused was duly served with the summons
from the learned trial Court and the accused appeared before
the learned trial Court and after the due procedure of Section
207 of the Code of Criminal Procedure, 1973 was followed, a
charge at Exh: 7 was framed against the accused and the
statement of the accused was recorded at Exh: 8. The accused
denied all contents of the charge and the evidence of the
prosecution was taken on record.
NEUTRAL CITATION
R/CR.A/212/2008 JUDGMENT DATED: 10/09/2024
undefined
2.4] The prosecution has produced the following oral as
well as documentary evidences in support of their case.
ORAL EVIDENCE
Sr. Prosecution Name of the witnesses Exhibits
No. Witness
4 P.W.No.4 Manilal Karshanbhai Ubaliya Exh:32
Chauhdary
DOCUMENTARY EVIDENCE
Sr. Name of the particulars Exhibits
No
1 Complaint Exh:22
2 panchnama Exh:13
3 Seized muddamal receipt Exh:23
4 Seized muddamal receipt Exh:24
5 Seized muddamal receipt Exh:25
6 Arrest panchnama Exh:38
7 Sanction for prosecution Exh:39
NEUTRAL CITATION
R/CR.A/212/2008 JUDGMENT DATED: 10/09/2024
undefined
2.5] After the closing pursis was filed by the learned
Additional Public Prosecutor at Exh:42, the further statement of
the accused under Section 313 of the Code Of Criminal
Procedure, 1973 was recorded, wherein, the accused denied all
the evidence 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 was pleased to pass the impugned judgment and order of
acquittal.
3] Being aggrieved and dissatisfied with the judgement
and order of acquittal, the Appellant-State has filed the present
appeal mainly stating that the judgement and order is contrary
to law and evidence on record and the principles of justice and
is based on inferences, not warranted by facts of the case and
also on presumptions, not permitted by law. The trial Court
thought to have seen that there are direct and indirect evidence
connecting the respondent with the crime and without
appreciating the oral as well as documentary evidence on
record of the case, the learned trial Court has straightaway
arrived at a conclusion that the prosecution has failed to prove
NEUTRAL CITATION
R/CR.A/212/2008 JUDGMENT DATED: 10/09/2024
undefined
the case beyond reasonable doubts. That the panch No. 1 has
clearly supported the case of the prosecution and there was no
reason to disbelieve the case of the prosecution, but the learned
trial Court has not appreciated the oral evidence of the panch
witness properly and the learned trial Court has failed to
appreciate that the decoy Manojkumar was not traceable and he
could not be examined by the prosecution during trial. The
other witnesses have fully supported the case of the
prosecution, but the learned trial Court has committed an error
in giving undue importance to the evidence of the decoy Manoj
Kumar and even though it is crystal clear that the prosecution
has proved its case beyond reasonable doubts in respect of
demand, acceptance, and recovery, has passed the impugned
judgement and order of acquittal. The prosecution has not
examined the competent authority for the sanction for
prosecution, but no dispute was raised by the defence on the
point of sanction, but the learned trial Court has committed a
grave error in holding that the prosecution has not examined
the competent authority to prove the order of sanction for
prosecution and has held that the sanction is illegal, incorrect
NEUTRAL CITATION
R/CR.A/212/2008 JUDGMENT DATED: 10/09/2024
undefined
and bad in law. The learned trial Court has not appreciated that
traces of anthracene powder were found on the hands and
clothes of the respondent and the impugned judgement and
order of acquittal is illegal, erroneous, contrary to the evidence
on record and against the settled position of law and deserves to
be quashed and set aside.
4] Heard learned Additional Public Prosecutor Ms. Jirga
Jhaveri appearing for the appellant-State and learned advocate
Mr. Zubin Bharda for the respondent-accused. Perused the
impugned judgment and order of acquittal and have
reappreciated the entire evidence of the prosecution on record
of the case.
5] Learned APP Ms Jirga Jhaveri has taken this Court
through the entire evidence of the prosecution and has
submitted that the prosecution has proved the case beyond
reasonable doubts from the evidence of the panch witness and
all the ingredients of demand, acceptance and recovery have
been proved. That even though the decoy Manojkumar could not
be traced out and his evidence could not be recorded before the
learned trial Court, the evidence of the other witnesses prove
NEUTRAL CITATION
R/CR.A/212/2008 JUDGMENT DATED: 10/09/2024
undefined
the case of the prosecution, but the learned trial Court has not
considered the same. That the Trap Laying Officer and the
Investigating Officer have fully supported the case of the
prosecution and the learned trial Court has not appreciated the
entire evidence in proper perspective and the impugned
judgement and order is required to be quashed and set aside
and the respondent must be found guilty for the said offences.
6] Learned advocate Mr. Zubin Bharda for the
respondent has submitted the prosecution has examined five
witnesses but has not proved the case beyond reasonable
doubts and if the panchnama produced at Exh: 13 is produced,
there are corrections in three places and there is no signature
of the panch witness No. 2 in the places where the corrections
have been made. The panch witness, who has been examined at
Exh: 12, has not disclosed what amount of illegal gratification
was demanded by the accused, and the place where the accused
demanded for the amount. That in fact, the tempo driver had
made fake bills and in the panchnama, the textile bill has not
been produced and the tempo driver had bills for stone pillars.
The case of the prosecution is not clearly made out and the
NEUTRAL CITATION
R/CR.A/212/2008 JUDGMENT DATED: 10/09/2024
undefined
tempo driver, who has been examined at Exh: 17 has stated that
when the decoy went to pay the octroi, he was standing near the
tempo and it is clear that he has not heard any demand of illegal
gratification being made by the accused and has not seen the
accused accept any amount of illegal gratification. That the
prosecution has not proved the ingredients of demand and
acceptance and the learned trial Court has discussed all the
evidence in proper perspective and in a well judgement has
acquitted the respondent and no interference is required. The
appellant-state has not been able to show that there is any
illegality or perversity in the judgement and learned Advocate
has urged this court to reject the appeal of the appellant.
7] At the outset, before discussing the facts of the
present case, it would be appropriate to refer to the
observations of the Apex Court in the case of Mallappa & Ors.
Vs. State of Karnataka passed in Criminal Appeal No.1162
of 2011 on 12.02.2024, wherein, the Apex Court has observed
in Para Nos. 24 to 26, as under:
"24. We may firstly discuss the position of law regarding the scope of
intervention in a criminal appeal. For, that is the foundation of this challenge.
It is the cardinal principle of criminal jurisprudence that there is a
presumption of innocence in favour of the accused, unless proven guilty. The
presumption continues at all stages of the trial and finally culminates into a
NEUTRAL CITATION
R/CR.A/212/2008 JUDGMENT DATED: 10/09/2024
undefined
fact when the case ends in acquittal. The presumption of innocence gets
concertized when the case ends in acquittal. It is so because once the Trial
Court, on appreciation of the evidence on record, finds that the accused was
not guilty, the presumption gets strengthened and a higher threshold is
expected to rebut the same in appeal.
25. No doubt, an order of acquittal is open to appeal and there is no quarrel
about that. It is also beyond doubt that in the exercise of appellate powers,
there is no inhibition on the High Court to re-appreciate or re-visit the
evidence on record. However, the power of the High Court to reappreciate the
evidence is a qualified power, especially when the order under challenge is of
acquittal. The first and foremost question to be asked is whether the Trial
Court thoroughly appreciated the evidence on record and gave due
consideration to all material pieces of evidence. The second point for
consideration is whether the finding of the Trial Court is illegal or affected by
an error of law or fact. If not, the third consideration is whether the view taken
by the Trial Court is a fairly possible view. A decision of acquittal is not meant
to be reversed on a mere difference of opinion. What is required is an illegality
or perversity.
26. It may be noted that the possibility of two views in a criminal case is not an
extraordinary phenomenon. The 'two-views theory' has been judicially
recognized by the Courts and it comes into play when the appreciation of
evidence results into two equally plausible views. However, the controversy is
to be resolved in favour of the accused. For, the very existence of an equally
plausible view in favour of innocence of the accused is in itself a reasonable
doubt in the case of the prosecution. Moreover, it reinforces the presumption
of innocence. And therefore, when two views are possible, following the one in
favour of innocence of the accused is the safest course of action. Furthermore,
it is also settled that if the view of the Trial Court, in a case of acquittal, is a
plausible view, it is not open for the High Court to convict the accused by
reappreciating the evidence. If such a course is permissible, it would make it
practically impossible to settle the rights and liabilities in the eyes of law. In
Selvaraj v. State of Karnataka,
"13. Considering the reasons given by the trial Court and on
appraisal of the evidence, in our considered view, the view taken by
the trial Court was a possible one. Thus, the High Court should not
have interfered with the judgment of acquittal. This Court in Jagan
M. Seshadri v. State of T.N. [(2002) 9 SCC 639] has laid down that
as the appreciation of evidence made by the trial Court while
recording the acquittal is a reasonable view, it is not permissible to
interfere in appeal. The duty of the High Court while reversing the
acquittal has been dealt with by this Court, thus:
NEUTRAL CITATION
R/CR.A/212/2008 JUDGMENT DATED: 10/09/2024
undefined
"9. ...We are constrained to observe that the High Court was
dealing with an appeal against acquittal. It was required to
deal with various grounds on which acquittal had been based
and to dispel those grounds. It has not done so. Salutary
principles while dealing with appeal against acquittal have
been overlooked by the High Court. If the appreciation of
evidence by the trial Court did not suffer from any flaw, as
indeed none has been pointed out in the impugned judgment,
the order of acquittal could not have been set aside. The view
taken by the learned trial Court was a reasonable view and
even if by any stretch of imagination, it could be said that
another view was possible, that was not a ground sound
enough to set aside an order of acquittal."" (emphasis
supplied) In Sanjeev v. State of H.P., the Hon'ble Supreme
Court analyzed the relevant decisions and summarized the
approach of the appellate Court while deciding an appeal from
the order of acquittal. It observed thus:-
"7. It is well settled that: -
7.1. While dealing with an appeal against acquittal, the
reasons which had weighed with the trial Court in acquitting
the accused must be dealt with, in case the appellate Court is
of the view that the acquittal rendered by the trial Court
deserves to be upturned (see Vijay Mohan Singh v. State of
Karnataka5, Anwar Ali v. State of H.P.)
7.2. With an order of acquittal by the trial Court, the normal
presumption of innocence in a criminal matter gets reinforced
(see Atley v. State of U.P.)
7.3. If two views are possible from the evidence on record, the
appellate Court must be extremely slow in interfering with the
appeal against acquittal (see Sambasivan v. State of Kerala)."
7.1] In Para - 36, the Apex Court, in the case of Mallappa
(Supra), has observed as under:-
"36. Our criminal jurisprudence is essentially based on the
promise that no innocent shall be condemned as guilty. All the
safeguards and the jurisprudential values of criminal law, are
intended to prevent any failure of justice. The principles which
come into play while deciding an appeal from acquittal could
NEUTRAL CITATION
R/CR.A/212/2008 JUDGMENT DATED: 10/09/2024
undefined
be summarized as:-
(i) Appreciation of evidence is the core element of a criminal
trial and such appreciation must be comprehensive - inclusive
of all evidence, oral or documentary;
(ii) Partial or selective appreciation of evidence may result in a
miscarriage of justice and is in itself a ground of challenge;
(iii) If the Court, after appreciation of evidence, finds that two
views are possible, the one in favour of the accused shall
ordinarily be followed;
(iv) If the view of the Trial Court is a legally plausible view,
mere possibility of a contrary view shall not justify the reversal
of acquittal;
(v) If the appellate Court is inclined to reverse the acquittal in
appeal on a re-appreciation of evidence, it must specifically
address all the reasons given by the Trial Court for acquittal
and must cover all the facts;
(vi) In a case of reversal from acquittal to conviction, the
appellate Court must demonstrate an illegality, perversity or
error of law or fact in the decision of the Trial Court.
7.2] The Apex Court, in the case of Neeraj Dutta Vs.
State (Govt. of N.C.T. of Delhi) reported in 2022 0 Supreme
(SC) 1248, has observed in Para No. 68 as under:
"68. What emerges from the aforesaid discussion is summarised as
under: -
(a) Proof of demand and acceptance of illegal gratification by
a public servant as a fact in issue by the prosecution is a sine
qua non in order to establish the guilt of the accused public
servant under Sections 7 and 13 (1)(d) (I) and(ii) of the Act.
(b) In order to bring home the guilt of the accused, the
prosecution has to first prove the demand of illegal
gratification and the subsequent acceptance as a matter of
fact. This fact in issue can be proved either by direct evidence
NEUTRAL CITATION
R/CR.A/212/2008 JUDGMENT DATED: 10/09/2024
undefined
which can be in the nature of oral evidence or documentary
evidence.
(c) Further, the fact in issue, namely, the proof of demand and
acceptance of illegal gratification can also be proved by
circumstantial evidence in the absence of direct oral and
documentary evidence.
(d) In order to prove the fact in issue, namely, the demand
and acceptance of illegal gratification by the public servant,
the following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe giver without
there being any demand from the public servant and the
latter simply accepts the offer and receives the illegal
gratification, it is a case of acceptance as per Section 7 of
the Act. In such a case, there need not be a prior demand
by the public servant.
(ii) On the other hand, if the public servant makes a
demand and the bribe giver accepts the demand and
tenders the demanded gratification which in turn is
received by the public servant, it is a case of obtainment.
In the case of obtainment, the prior demand for illegal
gratification emanates from the public servant. This is an
offence under Section 13 (1)(d)(i) and (ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by the
bribe giver and the demand by the public servant
respectively have to be proved by the prosecution as a
fact in issue. In other words, mere acceptance or receipt
of an illegal gratification without anything more would not
make it an offence under Section 7 or Section 13 (1) (d),
(i) and (ii) respectively of the Act. Therefore, under
Section 7 of the Act, in order to bring home the offence,
there must be an offer which emanates from the bribe
giver which is accepted by the public servant which would
make it an offence. Similarly, a prior demand by the
public servant when accepted by the bribe giver and
inturn there is a payment made which is received by the
public servant, would be an offence of obtainment under
Section 13 (1)(d) and (i) and (ii) of the Act.
(e) The presumption of fact with regard to the demand and
acceptance or obtainment of an illegal gratification may be
NEUTRAL CITATION
R/CR.A/212/2008 JUDGMENT DATED: 10/09/2024
undefined
made by a Court of law by way of an inference only when the
foundational facts have been proved by relevant oral and
documentary evidence and not in the absence thereof. On the
basis of the material on record, the Court has the discretion to
raise a presumption of fact while considering whether the fact
of demand has been proved by the prosecution or not. Of
course, a presumption of fact is subject to rebuttal by the
accused and in the absence of rebuttal presumption stands.
(f) In the event the complainant turns 'hostile', or has died or
is unavailable to let in his evidence during trial, demand of
illegal gratification can be proved by letting in the evidence of
any other witness who can again let in evidence, either orally
or by documentary evidence or the prosecution can prove the
case by circumstantial evidence. The trial does not abate nor
does it result in an order of acquittal of the accused public
servant.
(g) In so far as Section 7 of the Act is concerned, on the proof
of the facts in issue, Section 20 mandates the Court to raise a
presumption that the illegal gratification was for the purpose
of a motive or reward as mentioned in the said Section. The
said presumption has to be raised by the Court as a legal
presumption or a presumption in law. Of course, the said
presumption is also subject to rebuttal. Section 20 does not
apply to Section 13 (1) (d) (i) and (ii) of the Act.
(h) We clarify that the presumption in law under Section 20 of
the Act is distinct from presumption of fact referred to above
in point (e) as the former is a mandatory presumption while
the latter is discretionary in nature."
8] As per the settled principles of law, which are very well
crystallized with regard to the interference of the Appellate
Court in acquittal appeals, the evidence produced by the
prosecution must be re-appreciated and only if there is
perversity or illegality in the impugned judgment and order, an
interference of the Appellate Court would be warranted. It is
NEUTRAL CITATION
R/CR.A/212/2008 JUDGMENT DATED: 10/09/2024
undefined
also settled that if two views are possible and the learned trial
Court has taken a view of acquitting the accused, the Appellate
Court should not interfere with the impugned judgment and
order and it is open for the Appellate Court to re-appreciate the
evidence.
9] In view of the above settle principles of law, with regard to
acquittal appeals and cases filed under the PC act, the evidence
of the prosecution is required to re-appreciated and to bring
home the charge against the accused, the prosecution has
examined Prosecution Witness No. 1 Bhupatbhai Natwarlal
Kamli at Exh:12 and the witness is the panch witness, who has
stated that, on 27/12/2000, he had gone to the ACB office with
the other panch witness Kundanbhai Balubhai Chaudhary and
met the Trap Laying Officer, Police Inspector Mr. Rathod. The
witness has stated that they were shown the currency notes and
they had gone to Kumbia in the ACB jeep with the ACB staff and
the complainant Manojbhai. The person at the octroi Check Post
asked for the bill but the complainant stated that he did not
have the bill and the complainant gave the accused two
currency notes of the denomination of ₹100/- each which were
NEUTRAL CITATION
R/CR.A/212/2008 JUDGMENT DATED: 10/09/2024
undefined
tainted with anthracene powder and the accused took the
money with his right hand and put it in his pant pocket. The
complainant paid the amount of octroi and gave the
predetermined signal and the members of the raiding party
came and seized the currency notes from the pocket of the
accused and the currency notes were recovered by the panch
No. 2.
During the cross examination by the learned advocate for
the accused, the witness has stated that Manojkumar was
working in a cloth store and he does not remember what
questions were asked by the Trap Laying Officer to
Manojkumar. The bills of cloth were fake bills and there was no
cloth and when they left from the ACB office, it was decided that
the cloth merchants were being harassed and hence they took
the cloth bills for cloth. The bill of the marble was with the
tempo driver and if at the octroi Check Post, the price of the
goods are shown less, the actual octroi can be collected and the
place at the octroi Check Post was crowded.
9.1] The prosecution has examined Prosecution Witness
No. 2 Gordhanbhai Sureshbhai at Exh: 17 and the witness is the
NEUTRAL CITATION
R/CR.A/212/2008 JUDGMENT DATED: 10/09/2024
undefined
tempo driver, who has stated that, at the time of the incident, he
was driving a three wheel tempo and was going from Vav to
Puna octroi Check Post with Tempo No. 1289. Police Inspector
Rathod Sahib met him at Parvat Patia, when he was passing
Parvat Patia to go to Vav. Chaudhary Sahib was with Rathod
Sahib and they had fifty pieces of marble in the tempo. The
tempo was being driven by Manojbhai and they halted at the
octroi Check Post and Manojbhai went to pay the octroi but he
does not remember anything else. The witness has not
supported the case of the prosecution and has been declared
hostile and has been cross examine at length by the learned APP
but no incident to support the case of the prosecution has come
on record.
During the cross examination by the learned advocate for
the accused, the witness has stated that he goes by Puna Check
Post often, and at the time of the incident, Manojkumar was
driving the tempo and there were a number of vehicles at the
Check Post to pay the octroi. That there are a number of police
person at the octroi Check Post and Manojbhai had gone to pay
the octroi, he was standing at the tempo.
NEUTRAL CITATION
R/CR.A/212/2008 JUDGMENT DATED: 10/09/2024
undefined
9.2] The prosecution has examined Prosecution Witness
No. 3 Ajabsinh Mulsinh Rathod at Exh: 21 and the witness is the
Trap Laying Officer, who has fully supported the case of the
prosecution and has narrated in detail all the procedure that
was undertaken by him on 26/12/2020 and 07/12/2000. The
witness has stated that he had called the decoy Manojkumar
and the panch witnesses and had gone to find a five wheel
tempo and all the instructions were given to the decoy and the
panch witnesses. That he had instructed ASI Manilal to conduct
the demonstration of anthracene powder and ultraviolet lamp
and the characteristics of anthracene powder and ultraviolet
lamp were explained to the decoy and the panch witnesses. The
currency notes, which were smeared with an anthracene
powder were placed in the pant pocket of the decoy
Manojkumar and he had given ₹2500/- to the decoy. That they
went to complex and halted a three wheel tempo No. GJ-5-V-
1289, which was loaded with fifty pieces of marble of 2.1/2 feet
each in length and the driver was explained for the decoy trap
and he agreed to cooperate and the decoy, and panch No. 1 sat
in the tempo and went to the Puna octroi Check Post. That after
NEUTRAL CITATION
R/CR.A/212/2008 JUDGMENT DATED: 10/09/2024
undefined
the predetermined signal was given, he and the other members
of the raiding party and the panch No. 2 rushed and caught the
accused and the tainted currency notes of ₹200/- were
recovered from the pocket of the accused.
During the cross examination by the learned advocate for
the accused, the witness has stated that the information
received by him was around 26/12/2000 and no particular octroi
Check Post was mentioned in the information received. That
there are a number of vehicles coming into Surat from the Puna
octroi Check Post and Varacha Road and he had directly
contacted the decoy Manojkumar. That he had got the forms for
payment of October from his secret informer and a nominal fee
has to be paid for the forms but he had not paid any fees for the
forms. That the money used for the trap was from his own
personal money and he had sent a report to the office and had
received the amount from the government. The tempo driver did
not have any bill or receipt of the goods that were in the tempo
and he did not inquire from the tempo driver as to which shop
the marble bars were brought from. That the date mentioned in
the panchnama on page No. 4 is 27/28-12- 2000 and there are
NEUTRAL CITATION
R/CR.A/212/2008 JUDGMENT DATED: 10/09/2024
undefined
some corrections on page No. 7 of the panchnama produced at
Exh: 13. That the Decoy Manojkumar had paid the octroi before
giving the predetermined signal and the amount of octroi was
decided as per the form filled by the decoy. The hands of Clerk
Modi were not seen in the ultraviolet lamp and as per his
information, the decoy had first paid the amount of illegal
gratification and had thereafter paid the amount of octroi. That
on the day of the trap, there were more than one Detective
Inspectors present at the octroi Check Post and all the Detective
Inspectors were seated at one place. The Trap Laying Officer,
Police Inspector Rathod is also the complainant, who has
produced the complaint that Exh: 22.
9.3] The prosecution has examined Prosecution Witness
No. 4 Manilal Karshanbhai Ukhaliya at Exh: 32, and the witness
was a member of the raiding party and the lamp operator during
the trap. The witness has fully supported the case of the
prosecution and has narrated all the details and procedures that
were undertaken prior to the trap and after the trap.
During the cross examination by the learned advocate for
the accused, the witness has stated that Police Inspector,
NEUTRAL CITATION
R/CR.A/212/2008 JUDGMENT DATED: 10/09/2024
undefined
Rathod had called him to his chamber on 27/12/2000 at 15:30
hours and when they went from the ACB Office for the trap,
they had the bills of cloth with them and they had decided to
take a five wheel tempo for the trap but when they were
standing at Magob Patiya, no five wheel, tempo passed by and
the tempo that they had halted, was going from Puna village to
village towards Kadodra and was not going to Surat. That when
they halted the three wheel tempo, they made a false bill and
placed it in the pocket of the decoy and in the bogus bill, the
amount of goods of ₹9000/- were shown but the decoy
Manojkumar paid octroi for goods worth ₹11,000/-. That when
the decoy gave the predetermined signal, and they reached the
decoy, he had already paid an amount of ₹468/- as octroi from
the amount of ₹2500/- given by Police Inspector, Shri Rathod to
the decoy.
9.4] The prosecution has examined Prosecution Witness
No. 5 Kirtikumar Manchabhai Chaudhary at Exh: 37 and the
witness is the Investigating Officer, who has recorded the
statements of the connected witnesses and collected the
necessary documents including the order of sanction for
NEUTRAL CITATION
R/CR.A/212/2008 JUDGMENT DATED: 10/09/2024
undefined
prosecution, which is produced at Exh: 39. The witness has
thereafter filed the charge-sheet before the Session Court.
During the cross examination by the learned advocate for
the accused, the witness stated that at the time of the trap, he
was a member of the raiding party and the decoy had come to
the ACB office on the instructions of Police Inspector, Rathod.
That he does not know what work was being done by the decoy
and in his presence, Police Inspector, Rathod did not question
the decoy. That he did not record the statement of Police
Inspector - Rathod as to why he had chosen Manojkumar as the
decoy and at the time of the trap, there were many other
officers present at the Puna octroi Check Post besides the
accused. That the Trap Laying Officer did not give him any list
of officers present at the Check Post and the octroi Check Post
was continuously having vehicles passing by. That when he got
the investigation papers, the statement of the decoy Manoj
Kumar was not in the papers.
10] On minute appreciation of the entire evidence of the
prosecution, the infirmities in the case of the prosecution have
come on record and as per the case of the prosecution,
NEUTRAL CITATION
R/CR.A/212/2008 JUDGMENT DATED: 10/09/2024
undefined
Manojkumar Fulchand Sharma was the decoy from whom the
accused had demanded the amount of illegal gratification, and
Manojkumar Fulchand Sharma would be the best witness to
depose as to whether the accused had demanded the amount of
illegal gratification or not. They said decoy Manojkumar
Fulchand Sharma, who had been called by the complainant and
the Trap Laying Officer, Police Inspector- Mr.Rathod has not
been examined before the learned trial Court as he could not be
traced during the trial. In the absence of the evidence of the
decoy, the factum of demand, which is a sine-qua-non for the
offence under Section 7 of the PC Act is not proved beyond
reasonable doubts. As per the case of the prosecution, the decoy
Manojkumar Fulchand Sharma and the panch witness sat in
tempo of Gordhanbhai Sureshbhai and they had gone to the
octroi Check Post, but they said tempo driver Gordhanbhai
Sureshbhai, who has been examined at Exh: 17 has turned
hostile and in his evidence, there is no iota of evidence to
suggest that any such kind of a decoy trap was arranged and the
decoy Manojkumar Fulchand Sharma and the panch witness No.
1 Bhupendrabhai Natwarlal Kambli had gone for the decoy trap
NEUTRAL CITATION
R/CR.A/212/2008 JUDGMENT DATED: 10/09/2024
undefined
to the Puna octroi Check Post. The prosecution has not proved
the demand and the other witnesses. Prosecution Witness No. 3
Ajabsingh Mulsinh Rathod, the Trap Laying Officer, Prosecution
Witness No. 4 Manilal Karshanbhai Ukhaliyam, the lamp
operator and Prosecution Witness No. 5 Kirtikumar Manchabhai
Chaudhary, the Investigating Officer are not the witnesses of
the demand or acceptance, from the entire evidence and the
prosecution has not proved the case beyond reasonable doubts.
11] As per the settled principles of law, the appellate
Court would not ordinarily interfere with the order of acquittal
unless after appreciation of the evidence, it appears that the
judgement and order of the learned trial Court is vitiated by
some manifest illegality and the conclusion arrived at by the
learned trial Court is such that would not be arrived at by any
reasonable person, and the decision is perverse. It is also settled
law that the presumption of innocence of the accused is
strengthened by the judgement of acquittal and the golden
thread, which runs through the web of administration of justice
in criminal cases is that when there are two views possible, the
view in favour of the accused must be adopted. An appellate
NEUTRAL CITATION
R/CR.A/212/2008 JUDGMENT DATED: 10/09/2024
undefined
Court has full power to reappreciate and reconsider the entire
evidence of the prosecution and would interfere only if there are
substantial and compelling reasons that the judgement is
perverse and illegal.
12] In view of the decision of the Apex Court in the case
of Mallappa (supra), this Court is of the opinion that the
learned trial Court has appreciated the entire evidence of the
prosecution and there does not appear to be any infirmity and
illegality in the impugned judgment and order of acquittal. The
learned Trial Court has appreciated all the evidence and this
Court is of the considered opinion that the learned Trial Court
was completely justified in acquitting the accused of the charges
leveled against him. The findings recorded by the learned Trial
Court are absolutely just and proper and no illegality or
infirmity has been committed by the learned trial Court and this
Court is in complete agreement with the findings, ultimate
conclusion and the resultant order of acquittal recorded by the
learned Trial Court. This Court finds no reason to interfere with
the impugned judgment and order and the present appeal is
devoid of merits and resultantly, the same is dismissed.
NEUTRAL CITATION
R/CR.A/212/2008 JUDGMENT DATED: 10/09/2024
undefined
13] The impugned judgment and order of acquittal order
dated 15/01/2007 passed by the learned Presiding Officer,
Special Court, Surat in Special (ACB) Case No. 9 of 2001 is
hereby confirmed.
14] Bail bond stands canceled. Record and proceedings
be sent back to the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J)
VVM
