Ramesh Kumar vs State of Haryana

G.S. Chahal J,

Ramesh Kumar having been convicted by the Special Judge, Faridabad, vide his order dated November 27, 1990 for an offence under Section 5(2) of the Prevention of Corruption Act and sentenced to undergo four years R.I. and fine of Rs. 3,000/ or in default to further undergo one year R.I. and for an offence under Section 161 IPC, to one year R.I. has come up in appeal. The sentences of imprisonment have been ordered to run concurrently.

The appellant was employed as Junior Environmental Engineer in the Haryana State Water Pollution Board and was posted at Faridabad. It was part of his duty to make spot investigation and verification in the matter of grant of renewal of licence about Water and Air (Control of Pollution) Act and to make a report to Sh. B.L. Katyal, the Environmental Engineer. Khandelwal Chemical Factory (for short the Factory) at Faridabad fell within the jurisdiction of the appellant. The factory was owned by Bhanwar Lal Sharma and the manager of the company was Sh. Chand Mal Choudhary. The factory had a licence under the Act valid upto 31.3.87 and its renewal was due. On April 27, 1987, the appellant was approached by Bhanwar Lal Sharma and Chand Mal Choudhary making a request to him to make his report on their application for renewal and forward it to the higher authorities. The appellant made demand for Rs. 10,000/ as illegal gratification for making the report. He further asked them to pay Rs. 2,00/ on April 28, 1987 and the balance after the recommendation for the renewal had been made. Bhanwar Lal Sharma the proprietor felt uneasy over the demand made by the appellant. On April 28, 1987, he accompanied by the manager contacted Shri Daya Nand, Dr. S.P., State Vigilance Bureau, Gurgaon at Canal Rest House, Faridabad, and applied him of the demand made by the appellant. Shri Iqbal Chand, SDO happened to be present there. Daya Nand, Dy S.P. recorded the statement of Chand Mal Choudhary Ex. P.K. and seen ruqqa to police station, SVB, Gurgaon for the registration of a case. Formal FIR Ex. PK/1 was registered. Chand Mal Choudhary produced 20 currency notes of the demonination of Rs. 100/, each before the Dy S.P., who noted down their serial numbers and also affixed his own initials on each of these notes. He also applied phenolphthale in powder. The person of Chand Mal Choudhary was searched and the currency notes were handed over to him and memo Ex. PM was prepared, which was attested by Bhanwar Lal Sharma and Iqbal Chand. Banwar Lal was made a shadow witness and a direction was given to Chand Mal Choudhary that he should make a singhle to the shadow witness after the money pas passed on making a demand by the appellant. It was also agreed that Bhanwar Lal Sharma will give further signal to the raiding party. The raiding party then preceded to Section 9 Faridabad, where the Office of appellant was located. Chand Mal Choudhary and Bhanwar Lal Sharma went ahead while the remaining police party remained concealed behind and waited for the signal. After the signal was given by Bhanwar Lal Sharma, the raid was carried out by the Dy. S.P. and Rs. 2,000/ were recovered from the right pocket of the trousers being worn by the appellant. The serial numbers of the currency notes were compared which taillied. After preparing a mixture of sodium carbonate, the currency notes were got washed and the colour of the solution changed into pink. This was transferred into a nip and recovery memo Ex. PN was prepared. The hands of the appellant were got washed in a similar solution resulting in changing of the solution colour in to pink. This solution was transferred into another nift which was sealed and taken into possession vide memo Ex. PD. The trousers of the appellant was also got removed and its right pocket was washed in similar solution resulting in the change of colour of the solution into pink. It was also transferred into a nip. Recovery memo Ex. PP was prepared. The Dy. S.P. got the hands of the Chand Mal Choudhary washed and the same also changed the colour of the solution in to pink and this solution was transferred into a nip and taken into possession vide Ex. PQ. The Dy S.P. also took into possession papers Ex. PI/134 relating to the renewal of licence of the factory which were found lying on the table of the accused. These were taken into possession vide memo Ex. PR. A personal search of the appellant was made and a sum of Rs. 215/ and a purse were found, which were taken into possession vide memo Ex. PP/1. The appellant was arrested. After completion of investigation, the appellant was put in Court.

I may briefly give a resume of the evidence led by the prosecution to prove its case.

PW1 Jagapl Singh Choudhary confirmed having granted sanction Ex. PA for prosecution of the appellant, in his capacity as Chairman of the Board.

PW2 Ajaib Singh, clerk of the Board proved appointment order of the appellant as Junior Environmental Engineer Ex. PB and his posting order Ex. PC.

PW6 Bhanwar Lal Sharma corroborated the version of the prosecution.

PW8 Chand Lal Choudhary supported the version in his examinationinchief, but contradicted the same in his crossexamination.

PW7 Iqbal Chand SDO did not corrborate the version in its entirety.

PW9 BL Katyal confirmed that the appellant was posted under him as a Junior Engineer and that on April 28, 1987, he was present in his office. He also confirmed that lincence of the factory Ex. PL was valid upto 31.3.87 and was due for renewal thereafter, and that the verification for renewal of the licence was to be made by the appellant.

PW4 Sohan Lal, draughtsman proved preparation of the scaled plan Ex. PJ with respect to the place of recovery.

PW3 Inspector Rattan Singh deposed about partial investigation of the case while PW5 Inspector Ram Krishan proved registration of formal FIR Ex. PC/1.

PW10 Daya Nand, Dy. S.P. corroborated the version about the entire proceedings leading to the raid.

The appellant in his statement under Section 312 Cr.P.C. denied the making of any demand and acceptance of illegal gratification. He gave the following version :

"I was working in the Board since 1982 at Faridabad. Because of my performance, I was promoted as Asst. Environmental Engineer, the promotion was done one day before this tragedy with me. I was yet to take over charge of the office to which I was promoted in November, 1986. I had conducted inspection of Khandelwal Chemical Works and I had found that the industry was discharging affluents which were highly polluted. They had, thus, violated the licence. I made an oral report of it to Environmental Engineer of the Board, Mr. B.L. Katyal. I was told that this violation be kept in mind when the Industry apply for renewal licence. In was also asked to initiate the proceedings for issue of notice. A notice for legal hearing about air pollutions was issued to the Industry by Environmental Engineer. The Industry did not turn up. This notice was served in March, 87. Probably on 24th on April, 1987, Mr. Bhanwar Lal Sharma visited our office and put a pressure on me to make a favourable report about the renewal of licence about water pollution and also for favourable comments also for air pollution. I declined to oblige him. This offended Bhanwar Lal Sharma who threatened me that if I did not make favourable report, I may have to face dire consequences. On 28.4.87, one representative of Khandelwal Industry visited my office and requested me to complete some formalities with regard to Form B and FormI. They also asked me to accompany him in the car to the office of Industry. I refused, because I had to go to get the official car of Environmental Engineer repaired. At 11.30 I left the office for workshop in NIT for repair of the car. At 3 PM same day, I returned to the office in Sector 9. I met the Environmental Engineer. He asked me to collect the papers from my table and accompany him to Field Inspection. I went upstairs to my room in the office. I found two persons sitting there. One of them was Mr. Bhanwar Lal Sharma. He asked me to listen to his request. I asked them to come some other day as I was to go with Environmental Engineer. On my refusal, they got up and one of them i.e. the person other than Bhanwar Lal Sharma overpowered me from behind and tried to thrust some currency notes in my hand. The same person also forced to put the money in my right pocket of the paint of mine. The currency nets fell down on the floor. That other person was latter discovered as H.C. Harpal Singh. Some substance was rubbed on my right podcet of the pant and with my hands. Balbir Singh, my Peon was then present. He was witness to the occurrence. Three to four persons comprising DSP Daya Nand, SDO Iqbal Chand then rushed into my room. DSP Daya Nand disclosed his identity and asked me not to move from my seat. Balbir Singh, my peon was excluded from my room. My Environmental Engineer Mr. Katyal was also not allowed to enter my room. The DSP then began his false proceedings and implicated me in this case falsely. The paper work was completed by DSP Daya Nand in Canal Rest House. Chand Mal Chudhary PW was called to the Rest House at 4.30 PM by telephone. I was asked by the DSP to accompany him to Rest House. I never asked for any illegal gratification nor it was ever made over to me. I have been implicated falsely because of the threat given to me earlier by Bhanwar Lal Sharma for either making a favourable report or to face consequences."

He examined DW1 Balbir Singh, an office peon, who corrborated his version.

DW2 Som Dutt Geol produced the record with respect to the employment of Balbir Singh as peon in the office of the Board.

PW8 Chand Mal Choudhary in his examinationinchief stated about making of a demand by the appellant for Rs. 10,000/ from him as consideration for making recommendation for renewal of the licence on April 28, 1987. He further confirmed that his employer did not want make the payment and they both then contacted the Dy. S.P. Daya Nand, where he was handed over the money to be paid to the appellant. He further stated that on visiting the office of the appellant, he was not found present and he came at 3.30 PM and he then asked him to renew the licence. The appellant made inquiry whether he had brought the illegal gratification of which he applied in affirmative and he passed Rs. 2,000/ to the appellant, who put it in his right pocket of his trousers. He also confirmed the fact of the raid conducted by the police and the recoveries thereafter; washing of the hands, currency notes and the right pocket of the trousers of the appellant in a mixture. However, in his crossexamination, he took somersault and he claimed that he met the appellant for the first time on April 28, 1987 at 4.30 PM, but it was Mr. Sharma who called him over telephone to the Canal Rest House. That he was not a witness to the demand of any illegal gratification or to meeting of the demand and his statement made in examinationinchief was made under pressure of Mr. Sharma and the Dy. S.P.

According to the statement of Iqbal Chand Manchanda, SDO Irrigation PW7, he was told by Daya Nand Dy S.P. that a raid was to be organised and he should join the raid. At the Circuit House a sum of Rs. 2,000/ in the form of currency notes of the denomination of Rs. 100/ each were handover by an Industrialist by the name of Khandelwal Industries to the Dy. S.P. These notes were initialled and a powder was applied and serial numbers were noted. These currency notes were then handedover to Choudhary Chand Mal. They started for Sector 9. The currency notes were to be made over to Ramesh Kumar and Bhanwar Lal had been instructed to give a signal after the currency notes had been passed. The appellant was not in his office and the party waited at a teastall. Around 3.30 PM the appellant arrived on his motorcycle and went upstairs, to his office. About 57 minutes of the entry, Bhanwar Lal gave a signal and he accompanied by other members of the party went to the office of the appellant. When he reached there, the currency notes were lying on the ground. In his presence, the currency notes, the hands of the appellant his right pocket of the pant were got washed in a powder which changed the colour of the solution.

Bhanwar Lal Sharma PW6 was the owner of the factory, regarding which he was to get a licence, and recommendation has to be made by the appellant. According to him, first demand for illegal gratification was made by the appellant on April 27, 1987 when he met him in the company of PW8 Chand Mal Choudhary. The second demand was made when he went with the money on April 28, 1987. Chand Mal Chaudhary PW8 does not support this version of Bhanwar Lal Sharma. According to his testimony, it was only on April 28, 1987 when he visited the office of the appellant in the morning at 10 a.m. that a demand was made and on the same day Sh. Daya Nand, Dy. S.P. was contacted. Thus, even according to the examinationinchief, no demand was made by the appellant on April 27, 1987 as claimed by Bhanwar Lal Sharma. There is, thus, no corroboration to the statement of Bhanwar Lal Sharma with respect to the demand made on April 27, 1987. With respect to the demand for bribe made on April 28, 1987. Bhanwar Lal Sharma had made a number of improvements and he has been duly confronted with the statement Ex. DC. The facts which he has stated in the crossexamination regarding which he has been confronted, are to the effect that when he contacted the appellant, the appellant had inquired from him if he had brought the second installment and that he had told the appellant that his work should be done without taking the bribe and the appellant then told him that unless Rs. 2,000/ are paid, he will not even look into the papers. That while he was leaving the office of the appellant, he told him that he should bring the amount of Rs. 2,000/.

It is an interesting situation that the Dy. S.P. deputed Chand Mal Chaudhary as a trap witness, an employee of Bhanwar Lal Sharma and the employer was deputed to perform the duty of a shadow witness. Bhanwar Lal Sharma was obviously an interested person to make the raid successful. A further reference to his statement will show that he can hardly be descried to be an honest businessman. For the factory, he had obtained a licence which was valid only upto March 31, 1987 and as per the condition No 8 of Ex. PL, he had to apply for consent a month before the date of expiry. He, however, did not move that application and he has now completely forgotten that letter dated March 13, 1987 by the Haryana State Pollution Control Board had been issued to him. He could not, thus be termed to be a witness of unimpeachable credit who could be safely relied upon.

With respect to the recovery, independent witness Iqbal Manchanda has not supported the prosecution. As per his statement when he entered the office of the appellant, the currency notes had been found lying on the ground. This version is supported by DW1 Balbir Singh, who explained the situation in which the currency notes were tried to be thrusted into the pocket of the Pant worn by the appellant.

The principles that the trap witnesses is normally interested in the success of the raid and the Court may look for some independent corroboration before convicting an accused person was evolved by their Lordships of Supreme Court in State of Bihar v. Basawan Singh, AIR 1958 SC 500 and was followed in Ramparkash Arora v. State of Punjab, AIR 1973 SC 498 and Darshan Lal v. Delhi Administration, 1974 Chandigarh Law Reporter 611.

In the present case, the evidence of the trap witness is selfcontradictory and that of the shadow witness cannot be described to be of an independent witness. The only independent witness has contradicted the other evidence with respect of the recovery of the tainted money from the person of the appellant and there is corroboration to the pleas taken by the appellant, the circumstances in which an attempt was made to implicate him. The evidence of the prosecution is, thus, not sufficient prove the case of the prosecution beyond reasonable doubt.

I, hereby, accept the appeal, set aside the convictions and sentences and acquit the appellant. Fine, if paid, shall be refunded to him.