State vs Dilip D’souza

Jay Sengupta, J

This appeal is directed against the judgment and order of acquittal dated 05th October, 2018 passed by the learned Special Judge (under the Prevention of Corruption Act), Andaman and Nicobar Islands in Special Case No. 01 of 2003, thereby exonerating the present respondent from charges under Sections 7, 13(1) (d)(i), (ii), (iii) read with Section 13(2) of the Prevention of Corruption Act, 1988.

On 04th August, 2003, PW1 claiming to run a furniture shop at Phoenix Bay, came to the Police Station, Anti-Corruption with a written complaint alleging that the present respondent being a Ranger of the Forest Department at Jungli Ghat had harassed him on several occasions and kept on demanding a monthly payment for running his shop properly. After taking money, the respondent kept quiet for one and half months. He demanded Rupees Thirty Thousand for each month. Out of such monthly payment, PW1 was going to pay Rupees Fifteen Thousand as part payment. The numbers of the notes were also mentioned. On the basis of such complaint, Police Station Anti Corruption registered an FIR being FIR No. 1 of 2003 dated 04th August, 2003 under Sections 7, 13(1) (c) (d) and Section 13(2) of the Prevention of Corruption Act, 1988 (the PC Act, for short).

The investigation commenced. A trap team was formed including independent witnesses. On 04th August, 2003 itself a pre-trap procedure was exercised that included demonstration of sodium carbonate phenolphthalein test. The currency notes were sprinkled with phenolphthalein powder. The complainant was also handed over a micro cassette tape recorder with a blank cassette with a direction to record the conversation between the accused and him. The trap team proceeded towards the residence of the respondent. The shadow witness was directed to stand at the staircase near the first floor verandah. Other trap team members took their positions near the house. After the accused accepted the illegal gratification, PW1 sent an appropriate signal and rest of the trap team rushed to the spot. The tainted money was purportedly recovered from the left side sofa covered with pillow. The post trap procedure was conducted including the phenolphthalein test, which came positive and the accused was arrested. After completion of investigation, a charge sheet was submitted being Charge Sheet No. 01 of 2005 dated 28th January, 2005 against the respondent under Sections 7, 13(1) (d) and 13(2) of the PC Act. On 19th November, 2007 charges were framed under Sections 7, 13(1) (d) and 13(2) of the PC Act.

During trial, the prosecution adduced eight witnesses to establish its case, exhibited eleven documents including the written complaint, the seizure list, the pre trap memo, the site plan, the FSL report and the order of sanction and also relied on four material exhibits being the currency notes, cassette and two sealed bottles containing hand wash of both the hands of the accused. On the other hand, the defence adduced three witnesses and relied on five documents as exhibits, primarily to show a previous grudge that PW1, the complainant might have had against the respondent.

From a careful perusal of the evidence on record, it appears that PW1 was the defacto complainant and purported victim of the case. PW2 was an independent witness to the trap that was laid. While PWs 3, 4 and 8 were members of trap team. PW5 was the trap laying officer who primarily investigated the case. PW6 was a police constable who was tendered in evidence. PW7 prepared the site plan. In his examination under Section 313 of the Code, the respondent denied the allegations and claimed that the purported victim PW1 was actually engaged in illegal activities, several cases were pending against him and he was one of the witnesses in several such cases. He further claimed that PW1 had threatened him to falsely implicate in a case and actually did so eventually. Although DW1, a Sub Inspector of Police was summoned to produce an NC FIR dated 12th September, 2001 lodged by the respondent against PW1, he could not produce the same and deposed that most of the documents prior to 2004 had been washed away in Tsunami. DW2, a retired Range Officer of the Forest Department, deposed that he had lodged a written complaint against PW1 at Police Station Bamboflat and had apprehended PW1 several times for illegally trespassing and dealing with forest product/wood and dingy. PW1 had allegedly threatened him over phone stating that he had falsely implicated the respondent and would also implicate him in a false case. He proved an earlier complaint and some seizure memos as regards PW1 in one of the cases in which the respondent was a witness to the seizure. DW3, as Deputy Secretary (Personnel) of the Administration, produced the original as well as certified copy of an order dated 4th August, 2003.

Mr. N.A. Khan, learned counsel appearing on behalf of the State/appellant submitted as follows. Pursuant to a complaint filed by PW2, a First Information Report was registered. Although two independent witnesses were requisitioned by name, two different independent witnesses including PW2 came to act as trap witnesses. One of them passed away pending the proceeding. Elaborate arrangements were made for laying the trap. Adequate instructions were given. Sodium carbonate phenolphthalein test was demonstrated and thereafter phenolphthalein powder was sprinkled on the notes. The trap was well laid. The shadow witness waited at the staircase. After the bribe money was received by the respondent, upon the signal given by the PW1 the trap team entered into the first floor of the respondent's house. The money was recovered from a sofa. The respondent's hands tested positive for the phenolphthalein test. Once the test came positive, the same should be sufficient to convict the accused. Had the shadow witness went inside along with the complainant PW1, the respondent would have become cautious and might not have accepted the illegal gratification. But that should not come in the way of conviction when the phenolphthalein test was proved and the money was recovered in the presence of the independent witness. The site plan also corroborated the prosecution version and so did the FSL report. The sanction order for prosecution had not been objected too and the same cannot be called into question at this stage. If the defence had any doubt, they could have summoned the sanctioning authority. It is true that the contents of the tape recorders were not verified or tested. But even if such evidence is set apart, the offences were otherwise well established. The absence of few currency notes and a mismatch for a few such notes are minor contradictions, which are not fatal to the prosecution case. The facts that the respondent was witness in a prior case against the complainant PW1 and that there was a consequent animus between the two cut both ways. The defence was not able to rebut the presumption under Section 20 of the PC Act.

Mr. D.C. Kabir, learned counsel appearing on behalf of the respondent submitted as follows. PW1, the defacto complainant, was an infamous smuggler of forest articles. An analysis of the defence exhibits would show that the PW1 and his men had been prosecuted on numerous occasions. About three days before the alleged incident at hand i.e. on 1. 08.2003, PW1 was prosecuted for smuggling timber in his dingy. As a mobile squad member, the respondent was a witness to it. In retaliation the respondent was falsely implicated in this case. The other officer DW2 was also threatened by PW1. The First Information Report was lodged even before the taking place of the alleged offences. PW5 admitted that he had inserted the time of occurrence of the FIR subsequently. The pre-trap procedure was defective. Phenolphthalein powder was not properly used. PWs 4 and 8 categorically stated that only fifteen of the total notes were smeared with phenolphthalein powder. PW10 admitted that he could not tell about the colour of the liquid in the bottle as the bottle was entirely covered. This makes the case even more suspect, especially in view of the fact that some of notes as mentioned in the FIR were missing from the seized articles and quite of a few currency notes had different numbers than alleged. The witnesses assigned to act in the trap were never examined, as proved by DW3. PW2, who was never assigned for such job, eventually acted as the shadow witness. In the true sense, no independent witnesses were examined to prove the entrapment. The demand of bribe and the acceptance of it constitute the heart of a trap procedure. In the present case, no evidence is forthcoming to establish the demand of illegal gratification. Even as regards acceptance of bribe, the interested party PW1 was the only witness. A positive result at the phenolphthalein test only indicates the handling of currency notes and not the demanding or the accepting of bribe. Besides, there were doubts about the exact place of occurrence. A witness could not remember how many floors were there in the building. Even if one accepts the proposition that the shadow witness PW2 had taken position on the stair leading to the second floor, he was not in a position to see or hear the respondent demanding or accepting bribe. While PW 3 said that upon signal given by PW1, the trap team members rushed to the place, according to PW2, PW 1 first gave a signal to PW2 and the latter relayed it to the others. As the prosecution failed to make out a prima facie case, the presumption contemplated in Section 20 of the PC Act would not set in. In any event, the defence was able to produce several relevant witnesses to dispel such presumption. The defence presented sufficient evidence and materials in this regard. On the point that the phenolphthalein test only shows handling of notes and there has to be evidence of demand for and acceptance of bribe, reliance was placed on Ganga Kumar Srivastava vs. The State of Bihar, (2005) 6 SCC 211.On the point that recovery of tainted money may not be sufficient and demand for and acceptance of bribe have to be proved, reliance was placed on two decisions of the Hon'ble Apex Court reported in Khaleel Ahmed vs. State of Karnataka, (2015) 16 SCC 350 and on Selvaraj vs. State of Karnataka, AIR 2015 SC 3834. Khaleel Ahmed vs. State of Karnataka(supra) decision was also relied upon on the questions of the burden of prosecution to prove a case and on the presumption under Section 20 of the PC Act. Reliance was also placed on P. Satyanarayana Murthy vs. The Dist. Inspector of Police and others, (2015) 10 SCC 152 on the effect of the inability to prove demand for bribe. On the question of what the result would be if defence brings evidence to show why an accused was framed, reliance was placed on Chandrappa and others vs. State of Karnataka (2007) 4 SCC 415 and on an unreported decision of the Hon'ble Apex Court passed on 09.04.2019 in Criminal Appeal Nos. 694-95 of 2011, Sampat Babso Kale and another vs. The State of Maharashtra. On the question of presumption under Section 20 of the PC Act, reliance was also placed on V. Sejappa vs. State, AIR 2016 SC 2045. There the accused tested positive for phenolphthalein but the demand for bribe could not be proved. The prosecution failed to prove its case beyond reasonable doubt. When there are two alternative reasonable outcomes, the one favouring the accused should be accepted, especially in case of an appeal against acquittal.

I heard submissions of the learned counsels appearing on behalf of the appellant/State and the respondent and carefully perused the evidence and the other materials on record and a copy of the impugned judgment and order to analyze its correctness and propriety.

Initiation of the case:

It would have cut both ways had the complainant alleged that within two or three days of the initiation of a case against him where the appellant acted as a witness, the bribe in question was asked for by the appellant. But, the complainant chose to allege that the respondent had demanded and eventually charged such speed money earlier. Yet, the said case was lodged against him where the appellant participated as a witness. Although not inherently improbable, the allegations made in the instant case appear to be somewhat divergent from the factum of initiation of the said earlier case against the appellant. The replacement of the two originally allocated independent trap witnesses with the two actual ones only renders the initiation of the case a little more suspect. Of the two such subsequent trap witnesses, only one could be finally examined. Even the formal First Information Report was apparently recorded before the alleged offence was complete.

Trap evidence:

The trap team went to the appellant's house as scheduled. First, there is some contradiction as regards the sketch map vis-à-vis' the evidence of some witnesses about the details of the house and apartment in question. But, even these could be ignored. PW 2, the trap witness, was made to wait near the staircase approaching the first floor. From such place, neither could he see nor could he hear any offer or acceptance of bribe. There is further confusion in the evidence of witnesses as to whether the trap witness PW 1 signaled the trap team or the signal was relayed by PW 2. The tainted money was found on a sofa by the side of the appellant. Although the appellant was not caught with the money in his hand, the hands of the appellant purportedly tested positive for the phenolphthalein test. This fact may be accepted even though PW 10 deposed that he could not see the colour of the liquid as the bottle was entirely covered. Even numbers on a few notes and the total number of currency notes mismatched. However, one would fairly argue here that although the complainant might have some reason to falsely implicate the appellant, but why would the other trap team members do so. Therefore, the positive phenolphthalein test itself has to be tested as regards its sufficiency in bringing home a conviction.

Whether handling of tainted notes is sufficient:

In view of the ratio laid down by the Hon'ble Apex Court in V. Khaleel Ahmed (supra) and Selvaraj (supra), it is quite clear that mere handling of tainted currency notes by an accused is not sufficient to procure a conviction. One has to independently prove that there were a demand and an acceptance of a bribe. The ratio laid down by the Hon'ble Supreme Court in V. Sejappa (supra) is also relevant in this regard. Therefore, even if one accepts the factum of handling of the tainted notes by the appellant in the present case, there is no cogent and convincing evidence available from an independent quarter about demand or acceptance of bribe.

Audio cassette not used:

Although an audio cassette was given to PW 1 to record the conversation regarding offer and acceptance of bribe, the same was not used by the prosecution. It can therefore be inferred that the best evident was not produced and/or taken recourse to in this case.

Previous enmity between the complainant and accused:

Not only the appellant, but another public servant DW 1 also deposed about the facts that the complainant was a habitual trespasser in forest land and used to illegally deal in forest products and the complainant was prosecuted several times over such allegations. DW 1 also deposed that the complainant threatened him with similar false implications in criminal cases. Evidence was also adduced as regards the existence of one such prior case where the appellant was a witness against the complainant. In such backdrop, it is difficult to sustain a prosecution whose sole basis, apart from the phenolphthalein test, is the evidence of the said complainant at least so far as the demand and the acceptance of bribe are concerned.

Presumption under Section 20 of the PC Act:

No presumption, can take the place of proof in a criminal trial. The initial burden of making out a prima facie case is always with the prosecution. If the prosecution fails to discharge such initial onus, a presumption cannot be invoked as a substitute. Moreover, the presumption under Section 20 of the PC Act is a rebuttable one. Reliance on this score was rightly placed on the decision of the Hon'ble Apex Court in Khaleel Ahmed (supra). In V. Sejappa (supra), it was held that it is only when the initial burden regarding demand and acceptance of illegal gratification is successfully discharged by the prosecution, then the burden of proving the defence shifts upon the accused and a presumption would arise under Section 20. Mere recovery of money was not sufficient to draw the presumption under Section 20 of the Act. In the instant case, the prosecution failed to discharge its initial burden in respect of demand and acceptance of bribe.

If two views are possible, the one favouring the accused has to be chosen:

It is settled law that when two alternative views are possible of a particular set of facts, then the one favouring the accused ought to be accepted. If an appellate Court wants to reverse an acquittal, it will be incumbent on its part to hold that no two views are possible. On this, reliance is placed on the decision of the Hon'ble Supreme Court in Kalyan Singh vs. State of Madhya Pradesh, (2006) 13 SCC 303.

Considering that the handling of tainted currency notes by the accused was the only discernible evidence in this case and there was no independent and credible evidence about demand and acceptance of the bribe as alleged and in view of the allusion by the defence to a prior animus between the complainant and the accused, I am of the view that the prosecution has failed to prove its case beyond reasonable doubt. The respondent is entitled to a benefit of doubt. The view taken by the Learned Trial Judge regarding the innocence of the respondent is clearly more acceptable that the alternative proposition of his guilt. Hence, I find no reason to interfere with the judgment and order of acquittal.

In view of the above, I dismiss the appeal and affirm the impugned judgment and order of acquittal.

However, there shall be no order as to costs.

A copy of the judgment along with the Lower Court records shall be sent down to the learned Trial Court forthwith by a Special Messenger for information and necessary action.

Urgent photostat certified copies of this judgment may be delivered to the learned Advocates for the parties, if applied for, upon compliance of all formalities.