Manzoor Ahmad Dar vs State

Tae appellant, Manzoor Ahmad Dar, was a Patwari attached to Halqa Nursingh Garh in the Revenue District of Srinagar. He was tried in the

court of Special Judge, Srinagar for offences punishable under Sec. 161 RPC and Section 5(1) (d) read with Section 5(2) of the Prevention of

Corruption Act, 2006. On consideration of the evidence the learned Special Judge found that the offences were proved against the appellant. He

convicted the appellant under section 161 RPC and under section 5(1) (d) read with section 5(2) of the Prevention of Corruption Act and

sentenced him to rigorous imprisonment for one year and fine of Rs. 1,000/ in default to further three months rigorous imprisonment for the first

mentioned offence and to two years rigorous imprisonment and a fine of Rs. 2,000/ in default to further six months rigorous imprisonment for the

last mentioned offence. The appellant has preferred this appeal and challenged the conviction as also the sentence imposed on him.

The prosecution story goes like this: The complainant, Mohammad Ramzan Baghoo purchased a plot of land measuring 6 marlas at Ikhrajpora

within the Patwar limits of Nursingh Garh. He wanted to construct a house over this land. He approached the Municipality for grant of permission

to construct the house. The Municipality desired him to produce Intjkhab Girdawari and Aks Shajra. The complainant approached the appellant

for issue of necessary copies. The appellant kept on dodging him on one pretext or the other for one month and finally totd him to obtain necessary

orders from the Tehsildar, The complainant moved an application EXPW 1/1 before the Tehsildar. Srinagar on 14676. The Tehsildar passed

orders on the application the very same day directing the appellant to issue the necessary copies. The eomplainant went immediately to the house

of the appellant and showed the order to him. He was accompanied by a neighbour named Mohammad Yousuf P, W. 2. The appellant asked

them to come after two days. They again went to his house after two days. At this stage the appellant told them that he would issue the necessary

copies provided the complainant was willing to pay him Rs. 200/. The co np'ainant agreed but vide his application EXPW 1/2 immediately

informed the Anti Corruption Organisation of the deal. The Anti Corruption Organisation arranged for a trap. They requisitioned the services of

two gazetted officers from the Education Department namely Gh. Ali Selmani and Banerji Mistri PW's 3 and 4 for this purpose. The complainant

produced for inspection before the Dy. S. P. Anti Corruption, Mirza Hir/a Hamid Iqbal PW 6 two currency notes of one hundred rupee each

which he wanted to deliver to the appellant. Mirza Hamid Iqbal prepared an inspection note EXPW 3/1 in presence of Gh. Ali Salmani and

Banerji Misri PW 3 & 4 and recorded therein the numbers of the currency notes. The complainant was accompanied by Mohd Yousuf Wani P.

W. who was waiting outside Both of them then proceeded to deliver the money to the appellant. The raiding party consisting of PWs Mirza Hamid

Iqbal, GA Salrmni, Banerji Misri, R. L. Saraf Inspector, DN Munshi and P. L. Kaul Su'i Inspectors, Anti Corruption followed them. The appellant

met the complainant and his companion outside the Dy. Commissioner's office. They decided to go to a nearby tea stall called 'Moti Mahal' to

effect the transaction and to have a cup of tea. There the complainant delivered the two currency notes to the appellant who accepted the same.

The complainant then made the appointed signal by rubbing his head. The raiding party appeared on the scene and asked the appellant to produce

two currency notes worth Rs. 200/ which he accepted as bribe He evaded to do so. The Dy. S. P. conducted his personal search and recovered

the tainted noters from the hip pocket of the appellant's pant and seized the same vide EXPW 3/4. He also Manzoor Ahmad Dar Vs. State

lecovered cash amounting to Rs. 970.30 as also some papers from the personal search of the appellant and prepared the seizure memo EXPW

3/5. The appellant was taken to the Anti Corruption Police Station where his pant was seized EXPW 3/6. After completing the investigation and

obtaining sanction under section 6 of the Prevention of Corruption Act, the accused was put on trial before the Special Judge.

The appellant pleaded not guilty to the charge and denied having ever demanded or accepted any bribe. He even denied having been

approached by the complainant for the issue of the copies of Girdwari and Akas Shajra. He did not dispute the fact of search having been

conducted on his person but denied that the tainted currency notes were recovered from him. He however asserted that the amount of Rs. 970.30

was voluntarily produced by him before the police. His defence was that the complainant had foisted this case on him due to hostility.

The learned Special Judge held that the accused was a public servant at the relevant time. He further held that the accused had demanded and

accepted a gratification of Rs. 200/ from the complainant for issuing 'Intikhab Girdwari' and 'Aks Shajia' which was not a legal renumeration due

and payable to him. He also held that the amount was recovered during personal search from hip pocket of the appellant's pant and that this fact

gave rise to the presumption under section 4 of the Prevention of Corruption Act, 2006 that the accused had received the said currency notes for

any of the purposes mentioned in sec. 161 R. P. C'

Learned counsel for the appellant contended that the sanction was defective and consequently the proceedings were without jurisdiction. The

order of the competent authority granting the sanetion runs as under :

Govt of Jammu and Kashmir

Office of the Dy. Commissioner, Srinagar.

ORDER

Whereas it is alleged that Shri Manzoor Ahmad as Public servant in the capacity of Patwari Nursingh Garh obtained a sum of Rs. 200/ from Shri

Mohammad Ramzan Bagoo son of Ab. Ahad Bagoo R/o Ikhrajpora in consideration of getting permission for construction of house.

And where as the said sum of Rs. 200/ (two hundred) only was recovered from the said Shri Manzoor Ahmad in consequence of a trap

arranged by the AntiCorruption Organisation ;

And whereas the aforesaid acts of the said Shri Manzoor Ahmad Patwari constitute an offence punishable under section 5(2) of the prevention

of Corruption Act Samvat, 2006/;

And wheres the authority competent to remove the public servant after considering all the material and evidence relevant to the allegations is

satisfied and the case for prosecution is made out against the said Shri Manzoor Ahmed Patwari and it is necessary that he should be prosecuted

for the offence punishable under section 5 (2) of the Prevention of Corruption Act Samvat 2006.

And whereas previous sanction of the authority competent to remove the public servant as contemplated under section 6 of the prevention of

corruption Act, Samvat 2006 is necessary before the court can take cognizance of the said offence.

Now, therefore, in pursuance of section 6 of the prevention of corruption Act, Samvat 2006 sanction is hereby accorded to the prosecution of

the Shri Manzoor Ahmad Patwari for offence under section 5(2) of the Prevention of Corruption Act, Samvat 2006.

Sd/(G. N. Naik) IAS by Commissioner, Srinagar.

The argument of learned counsel for the appellant is that whereas the case of the prosecution is that the appellant obtained of Rs 200/ from the

complainant in consideration of his agreeing to issue intikhab Girdwari and Aks Shajra to the complainan in order to enable him to obtain the

building permission, the of sanction states that the amount was received by the appellant as a consideration for getting building permission in favour

of complainant. In these premises, he urged that the competent has not applied its mind to the facts of the case and as such the sanction is vitiated.

In support of his argument, he place, on a decision of the Supreme Court in Mohd Iqbal Ahmed vs. of Andhra Pradesh (1079) 4 SCC : 172. In

that case the appellant a municipal corporation employee, was convicted under R. P. C. and section (5)(2) read with section 5(1) (b) Prevention

Corruption Act, 1947. The Departmental Standing Committee gran sanction under section 6 of the Act for his prosecution on 1 of a note of the

Commissioner of Municipal Corporation. The not was however not produced at the trial and the prosecution merely examined two witnesses one

of whom produced the order plementing the resolution of the standing committee. It was argued that sanction under section 6 produced in this case

did not reveal constituting the offence and therefore there was no evidence on what material the sanctioning athuority applied its mind granted the

sanction. Allowing the appeal, the Supreme Court held:

''It is incumbent on the prosecution to prove that a valid sanction has been granted by the Sanctioning authority after it was satisfied that a case for

sanction has been made out constituting the offence. This should be done in two ways: either (1) by producing the original sanction which itself

contains the facts constituting the offence and the grounds of satisfaction, or (2) by adducing evidence aliunde to show the facts were placed before

the Sanctioning Authority and the satisfaction arrived at by it. Any case instituted without a proper sanction must fail because this being a manifest

difficulty in the prosecution, the entire proceedings are rendered void abinitio.

What the court, has to see is whether or not the sanctioning Authority at the time of giving sanction was aware of the facts constituting .the offence

and applied its mind to the same, and any subsequent fact which may come into existence after the resolution granting sanction has been passed, is

wholly irrelevant.

In the present case the prosecution has produced the original order of sanction. The order of sanction says that the object of the consideration

was to get building permission in favour of the complainant. The prosecution case however is that the object really was to issue copies of the

revenue record to enable the complainant to get the building permission. Thus there can be hardly any dispute that there is any error in the

description of the object of consideration. If this error be due to the nonapplication of mind of the sanctioning authority, then the sanction is

invalidated. On the other hand, if it is merely a drafting error, then thei sanction is not vitiated. At first thought I was inclined to think that the error

was attributable to the nonapplication of mind but on a deeper consiHeration I have come to the conclusion that the assumption is not correct, and

that the error is merely a drafting'error, I say so because the case of the prosecution is that the complainant wanted the copies of the revenue

record in order to enable himself to get permission for constructiou of a house from the Municipality. It is not therefore unthinkable that, while

drawing up the formal order of sanction, the draftsman omitted to make reference to ths Intikhib Girdawari and Aks Shajra in clause (1) of: the

sanction while mentioning the object of the consideration. Otherwise also, the order of sanction is comprehensive and contains reference to all the

material facts viz, the accepttance of bribe by the appellant and its recovery from him in consequence of a trap arranged by the Anti Corruption

Organisation. In the circumstances the error would not render the sanction invalid. The objection fails.

This inevitably leads us to the question has been rightly convicted by the learned Special before him, Mohd Yousuf Pw 2 turned hostile The

learned Special Judge has accepted his testimony. The argument of the learned counsel for the appellant is that the complainant's testimony could

not be accepted without corroboration in material particulars, For Mis, he has relied upon the decision of the Supreme Court in Panalal Domodar

Rathi v, State of Maharastra (AIR 1979 S. C: 1191). In tliLt case, the Supreme Court was pleased to observe :

There could be no doubt that the evidence of the complaint should be corroborated in material particulars. After introduction of section 165A on

the I. P. C. making the person who offers bribe guilty of abetment of bribery the complainant cannot be placed on any better footing than that of an

accomplice and corroboration in the crime has to be insisted upon"".

This principal of these observations is equally applicable to our State in as much the RPC also contains a provision similar to 165A of IPC.

There fore we will have to see whether the evidence of the complainant has been corroborated. The version of the complainant is that the appellant

demanded bribe from him as a consideration for his issuing In tikhab Girdawari and Aks Shajra in his favour. He has stated that the appellant kept

on dodging him for one month and finally asked him to get the necessary orders from the Tehsildar and when he got the orders and showed the

same to the appellant, he asked him to come a couple of days after when he demanded the bribe from him. EXPM/I bears ample testi mony to this

version. This is an application which was moved by the complainant before the Tehsildar on 14.6.76. The orders of the Tehsildar directing issue of

the necessary copies appear on the application. The orders were passed on 14.6.76, The demand was allegedly made on 16.6.76. It may be

added here that the same day the complainant has approached the Anti Corruption Department who immediately arranged a trap. That shows that

the appellant had a cause for demanding the bribe from the complainant and therefore if the complainant says that he demanded bribe from him. the

version cannot be said to be improbable or unfounded.

The version of the complainant further is that he paid the amount to the appellant which was immediately after recovered iron the appellant by

the Anti corruption Police in consequance of the trap previously arranged by it. If the amount has been really recovered from the appellant, that is a

material circumstance corroborating the testimony of the complainant. The question of recovery, therefore assumes much importance. The learned

Special Judge has held the recovery to be proved. The prosecution has produced Gh. All Salmani, Banerji Mirsri and Mr. Hamid Iqbal Dy. SP to

prove the recovery. They were the members of the raiding party. They have unanimously stated that on receiving the signal they appeared on the

scene and asked the appellant to produce the two currency notes worth Rs. 200/ which he had accepted as bribe from the complainant, but he

evaded to do so. There upon Sh. Hamid Iqbal conducted his personal search and recovered the tained notes from hip pocket of the appellant's

pant. They have stated that the numbers of the currency notes so recovered tallied with the numbers noted in EXPW 3/1 which was prepared in

their presence by Hamid Iqbal the moment the two currency notes were produced for inspection by the complainant before he could deliver the

same to the appellant. Gh. Ali Sulmani and Banerji Misri are Gazetted Officers of standing of Education Department and very respectable witness,

There is no reason why their testimony should be rejected. The accused has however examined three witnessess to dispute the recovery, They are

Gh. Qadir Bhat, Mohd Sultan and Mohd Shaffi. They admit that the police conducted the personal search of the appellant but deny that the tainted

currency notes were recovered from the hip pocket of his pane. Gh. Qadir Bhat says that he had seen the appellant for the first time on the day of

occurrence and never afterwards and does not even know him. He adds that he has appeared in the witness box at the instance of one, Bashir

Ahmad, who is known to the appellant. This is enough to discredit his testimony. Mohd Sultan is the hotel keeper, He runs the tea stall called 'Moti

Mahal'. He says that nothing was recovered from the hip pocket of the appellant's pant. It is, however, difficult to give preference to his testimony

over the testimony of Gh. Ali Sulmani and Banerji Misri who are more respectable, more dependable and more independent. The witness is a

petty tea stall holder and can be purchased without much effort. Mohammad Shaffi has stated that all that happened was that the police asked the

appellant to produce whatever cash amount he had with him and there upon the accuses produced Rs. 800/900 but these did not include any

marked currency notes According to him the police did not conduct any personal search of the appellant. This statement runs counter to the

depositions of the other two witnesses who expressly state that the police had conducted a personal search of the appellant. Accordingly no

reliance can be placed on this witness. In the circumstances I am inclined to agree with the learned Special Judge that the prosecution has proved

the recovery beyond any shadow of doubt.

The argument of the learned counsel for the appellant U that the recovery is doubtful and cannot be acted upon for two reasons. Firstly that the

room which the appellant was occupying, when his personal search was conducted, is a small cozy room with the potentiality of the currency notes

being smuggled into the pocket of the accused and secondly that the search was not witnessed by respectable inhabitants of the locality as

contemplated by sectoin 103 of the Code of Criminal Procedure. The argument is however devoid of any merit. Sh. Gh. Ali Sulmani and Hamid

Iqbal have no doubt stated that the tea stall where the recovery was made from the person of the appellant is housed in a small room but from this

it canot be necessarily inferred that the place was an ideal site for smuggling the tainted currency notes into the appellant's pant. Particularly so,

when the appellant does not even remotely suggest that the currency notes had been smuggled into his hip pocket without his knowledge. That

apart, the appellant's own witness Sh. Mohd Sultan who is running the tea stall in question states that the room in question can accomodate 13/20

persons and he has actually placed five tables in the room and each table has two chairs attached to it. This would show that the room is not so

small nor even the setting is so bad that anyone can smuggle money into the pocket of another person without the risk of being detected. Otherwise

also no such hint has thrown in the defence, Moreover the tea stall may be a small place but all the same it is a public place and it is difficult to

believe that anyone would think of hitting at a plan .to smuggle the money into the pocket of the accused. The suggestion is extremely far fetched.

The first point fails.

So far as the second point is concerned, suffice it to say that the compliance of section 103 would be required only where search is conducted

of a place and not of a person. In any case the provisions of this section are directory and the noncompliance there of would not render the search

illegal. Needless to add that the investigating agency could not find persons more respectable than the two gazetted officers to witness the search.

The second point too must therefore fail.

In the background I am inclined to hold that there is ample evidence on the file to corroborate the evidence of the complainant in all material

particulars and that his statement coupled with other circumstances mentioned above leaves no room for doubt, that appellant had obtained a sum

of Rs. 200/ from the complainant as gratification for supplying copies of Intikhab Girdawari and Ask Shajra to him It is also proved that the

amount was not due and payable to the appellant by way of legal renumeration. If that be so, there arises a presumption under section 4 of the

Prevention of Corruption Act, 2006 that the appellant had received the money for any of the purposes mentioned in section 161 R. P. C. (See

AIR 1975 S. C ; 1432). The presumption, as rightly stated by the counsel for the appellant, can be drawn in respect of the offence under section

161 CPC only and not with respect to the offence referred to in clause (d) of subsection (1) of section 5 of the Prevention of Corruption Act,

2006. But that does not make any material difference in the present case. I say so because as long as it has been proved that the appellant had

accepted the money by way of illegal gratification, he has abused his position as a public servant. Consequently the requirements of clause (d) of

section 5 (1) are sufficiently satisfied.

For the foregoing reasons I am of the opinion that the learned Spscial Judge was justified in convistLig tha appellant under section 161 RPC and

under section 5 (1) (d) read with 5 (2) of the Prevention of Corruption Act, 2035 and that the conviction does not call for interference by this

court. But the same is not true about the sentence imposed by him. The sentence appears to be a little excessive, moreso, because the appellant is

going to lose his job as well. In my opinion, the ends of justice will be served if the appellant is sentenced to one years rigorous imprisonment and

also to fine of Rs. 100/ in default to one weeks further rigorous imprisonment for the offence under section 161 R. P. C. and to rigorous

imprisonment for one year and a fine of Rs. 100/ in default to further one weeks rigorous imprisonment for the offence under section 5 (1) (d) read

with section (2) of Prevention of Corruption Act, and moreover, if the sentences are allowed to run concurrently. I make an order accordingly.

Subject to this modification, the appeal is dismissed. The appellant is on bail. He shall surrender to his bailbonds and under go the senence, as

revised.