P.D. Kudal, J.
1. This is an appeal against the judgment of the learned Special Judge for AGD cases,' Rajasthan, Jaipur, dated December 19. 1974 by which the appellant was convicted under Section 161, IPC and sentenced to six months simple imprisonment & a fine of Rs. 100/-. in default of payment of line to undergo one week's simple imprisonment. He was also convicted under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, and was sentenced to one year's simple imprisonment and a fine of Rs. 250/-, ltd in default of payment of fine to undergo two weeks simple imprisonment. Both the sentences were ordered to run concurrently.
2. The brief facts of the case are that in October, 1972 the accused, Ravindra Sahai Saxena was posted as Assistant Fishery Development Officer, Karauli. The Fisher Department gives licenses to the con tractors, for catching fish subject to certain conditions The relevant conditions are that during the close season, that is, from 15th of June to 15th of September, the contractor would not be allowed to catch fish, and that on the open season also the contractors should not catch fish which less than 9' in size or less than half kilo-gram in weight. An occasional check has, therefore, to be kept on the contractors Jumma son of Tajuddin resident of Karauli was one of the contractors and licence-holder for catching fish in the five rivers of Karauli. The contractor is also called from to give the names of the labourers which he may employ and the labourer so employed is usually called as the agent of the contractor. For purpose of identification of these agents of the contractor a true copy of the licence is also issued. Tdha, one of the agents of Jumma caught a bag of fish on October 25 1972, which was detected and seized by the accused and auctioned for a sum of Rs. 40/-, The allegation was that as the illegal gratification demanded by the accused was not paid to him he adopted this means to pressurise Jumma and his agent to give the illegal gratification sought for. It was stated that the fish caught in the bag were smaller in size or less in weight, and could not have been netted by the contractor or his agents. It is said that the true copy of the licence was taken away by the accused who demanded Rs. 200/- for returning the same. The prosecution case is that the accused who demanded an illegal gratification of Rs. 200/ p.m. or Rs 100/- every fortnight, otherwise, the fish which the contract I or his agents would net, would be caught and auctioned as they contravened the terms and conditions of the licence being either small in size or less in weight. Jumma wanted time to arrange for the morsey. It is said that jumma come to Jaipur on October 31, 1972 and lodged a report Ex P/12 with the Inspector General ACD, Jaipur. The Deputy Superintendent of Police. Tonk, within whose jurisdiction this area fell, was directed to arrange for a trap, but he was not available and other Deputy Superintendent of Police, ACD, Crime Branch, Shri D.G. Malik, was deputed to arrange the trap. He took an application from Jumma and directed him to meet him the next day, at the Dak Bungilow, Karauli along with Rs. 210/-. As planned, Shri D.C. Malik, Jumma and his partner Kamaliudin met at the Dak Bungalow, Karauli in the morning of 1-11-1972. After having discussed the trap plan and having inspected the house of Jumma, it was decided that the trap should be laid at the house of jumma Jumma produced two currency notes of Rs. 100/- each, which were initialled by the Deputy Superintendent of Police. The Head Cons' able Shri Hanumant Singh applied phenothaline powder to these two notes. These notes were then given to Jumma with the instructions to give them u the accused in his hands when he demands the bribe. Kamaluddin and Rutubuddin were directed to be present to hear the talks and to witness the payment Bansilal constable was also instructed to in the room on upstairs where the payment was to be made. The Deputy Superintendent of Police ACD Shi Malik along with his party men waited in the room below with closed doors. The prosecution case further is that about 4.30 p.m. Jumma came with the accused, Ravindra Sahai Saxena, and went upstairs. Jumma and his partner Kamaluddin pleaded with the accused that the amount of Rs. 200/- as bribe was on the higher side, and tint it should be reduced to Rs. 150/-. It is said that the accused did not agree to reduce the amount, but sail that if Rs. 200/- per month are paid to him by was of illegal certification, then the contractor and his agents can catch any types of fish irrespective of its size or Weight Later on, when the accused was taking tea with the cup in one hand and the saucer in the order Jumma offered Rs. 200/-. He asked Jumma to keep the notes in his pocket of the paints which was accordingly done by the contractor Jumma Jumma then asked to bring 'pan' (betel) and this served as a singal to inform the Deputy Superintendent of Police, Shri D.C. Malik of the fact that the money has been paid to the accused. On receiving the signal, The Deputy Superintendent of Police came to the room along with his party men introduced himself to the accused. He feed the accused to take out the money which he had received by way of the illegal gratification. On a search being taken, a true copy of the licence and notes of Rs. 200/- were found The number of those notes so found along with he licence in the pocket of the pant of the accused tallied with the umbers which had been noted by the Dy. S.P. at the time when these notes were initialed. The hands of the accused were tested for the presence of Phenotahline powder by putting them in water mixed with the sodium carbonate. The water turned out to be of light pink colour. It was poured into a bottle and sealed. The accused was then directed to change his clothes ad when the pocket of his pant was again tested by mixing sodium carbonate water, the water turned dark pink. This was also poured in a separate of the and sealed. After the preparation of recovery memos, the accused was Trusted, but later on released on bill. On a chemical analysis, the contents both these bottles were found to contain phenothaline powder and Sodium carbonate. After having obtained the necessary sanction for prosecuting the accused from the Director of Animal Husbandary, Rajasthan, Jaipur fie accused was challenged under Section 161, IPC and Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act.
3. The accused filed written statement under Section 342, CrPC and intended that he had seized the fish of one person who declared his name as Mukhtiyar, who was the agent of Jumma. The fish was auctioned on the Mowing day. A regular receipt of Rs. 40/-, the amount for which the fish Was auctioned was prepared and sent to the purchaser. This seizure of the fish Braged Jumma who manipulated a false trap on him. It was further contended by the accused that Jumma had taken him to his house on the pretext fanatic was the birth day of his son and that some guests have been invited, jumma and his other companions straight way planted these notes without his knowledge.
4. The learned Special Judge, ACD after examining the withnesses came to the conclusion that the guilt has been brought home to the accused and the accused was accordingly convicted as stated above.
5. On behalf of the accused appellant, it has been contended that the prosecution has utterly failed to bring the guilt home to the accused. It was also contended that there have been overwritings in the statements taken fonder Section 161, CrPC. It was also contended that even according to the prosecution story when the accused appellant did not have, any occasion to such these currency notes of Rs. 100/- each by his hands, there was no occasion for the presence of phenothaline powder and the entire prosecution story with regard to the presence of the phenoathaline powder in the hands of the accused should be totally discarded. It was also contended that the prosecution has not succeeded in explaining why the water in which the hands m the accused were washed, turned pink in colour, and why on chemical examination the presence of phenothaline powder was noticed. It was also contended that the prosecution evidence cannot inspire confidence of the Court and that there are serious material contradictions in the statements of the witnesses and their statements are not reconciliation. It was also contended that the demand of Rs. 200/- as illegal gratification by the accused from the contractor Jumma has not peen established. It was also contended that when the licence was alleged to have been seized by the accused, then how could it be that the currency notes of Rs. 200/ -could be given to him being wrapped in the copy of the licence. It was also contended that some of the prosecution witnesses are close relations of Jumma and are highly interested in him. It was also contended that the learned Special Judge has always given the benefit to the prosecution for the various short-comings in the prosecution version. It was, therefore contended that the prosecution has miserably failed to substantiate the charges levelled against the accused Ravindra Sahai Saxena. It was also contended that the confiscated fish were sold on 26-10-1972. and a regular receipt was given to the purchaser Bafat on 27-10-1972, as would be evidenced from Ex. P 9.
6. On behalf of the State, the learned Public Prosecutor refuted the allegations of the learned Counsel for the accused appellant and contended that the prosecution has succeeded in establishing the guilt of the accused.
7. The respective contentions of the learned Counsel for the appellant and the learned Public Proscutor were considered and the record of the case carefully persued.
8. PW 1 Kamahiddin is a close relation and a partner of Jumma PW 7 Jumma is the brother-in-law of the son of elder brother of PW's father This witness was declared hostile. P.W. 1 one of those witnesses who is said to be present in the room where the two currency notes of Rs. 100/- each were placed in the right hand pocket of the pant of Ravindra Sahai PW 1 has not supported the prosecution story with regard to the bargain of Rs. 200/-or Rs. 150/-. He has also stated that Rs. 200/- currency notes were placed in the pocket of the pant of the accused wrapped in a paper even with out his knowledge or his notice. The prosecution got this witness declared hostile. It is apparent that much reliance cannot be placed on this witness because of relationship and also as he has been declared hostile.
9. PW. 2 Chandra Prakash, PW. 3, Himmat Singh. PW. 4 Bhanwarlal and PW. 5 Gopal Lal are only formal witnesses and their evidence is rot of any avail with regard to offer and acceptance of bribe by the accused.
10. PW 6 Banshilal is a constable employed in Anti Corruption Deptt. He was lying down in a cot in the room in first floor of Jumma's house It is said that he used to keep sick and on that particular day also he pretended to be sick and was lying in a cot in that room He stated that Jumma stood upon a side in the back of the accused and then placed notes in the pocket of the pants of the accused. At that time the accused was standing and was taking tea.
11. PW 13 Kutubuddin, however, has stated that when the moneys was placed in his pocket, the accused was standing and then sat down Jumma PW 7, however stated that when he told the accused to accept Rs. 200/-, he had a cup in his one hand and the saueer in the other hand. He stood up| and said that the money may be kept in the pocket of his pant. This witness further admitted that the Deputy Superintendent of Police had, however, 1 instructed him to give notes in the hands of the accused. He stated that h% had kept the money in the pocket while standing in the front. When the accused was asked to wash his hands with water he had told the Dy. S.P that the notes were kept in the pocket of his pant and were not given in his hands. On the contrary, the Deputy Superintendent of Police, AGD, Shri Milik, PW 17. has stated that he did not suggest that the trap should be laid at the house of jumma. It was the decoy, who himself requested for it. He has further stated that he got the hands of the accused washed with water as he had the impression chat the accused must have felt the notes having been placed in the pocket of his pant. The plea taken by the accused that he did not know about anything being placed in his pocket stands corroborated by the statement of PW 1 Kamaluddin who has been declared hostile.
12. The learned Special Judge has observed that according to the accused the person from whom fish were seized disclosed his name as Idha or Mukhtiyar. The prosecution did not examine either Idha or Mukhtiyar so that it could be ascertained as to who was the agent or the labourer of the contractor Jumma. In the absence of the statements of Idha or Mukhtiyar, it is difficult to decide whether the fish were less than 9' in length or were less than 1/2 kilogram in weight.
13. For coming to the correct conclusion regarding the acceptance of bribe by the accused, it has to be seen whether the accused demanded and accepted the bribe, or it was only an attempt on the part of jumma to entrap the officer who was thing to interfere with his activities which were contrary of the terms of the licence. An over all picture of the situation reveals that the complainant Jumma was the real brain behind the trap, and the authorities of the Anti-Corruption Department were only following his scheme. It was strongly contended that the Invastigation Officer has changed the word 'LIPTA' into 'CHIPTA', and the word 'MAILA' has been added subsequently. The word 'CHIPTA' was said to be substituted in place of 'LIPTA' so a$ to establish that while placing these papers the accused must have seen the currency notes. It it rather strange that the trap was laid at the house of the complainant himself, and no independent witnesses were introduced. It was also argued that the prosecution has not succeeded in establishing that there was any demand and acceptance of the bribe, and that no evidence of giving bribe on previous occasion was led, though it was alleged. In view of these circumstances, it rather appears to be exceedingly difficult to accept that the prosecution has succeeded in establishing the demand and acceptance of bribe by the accused. In this connection, it is also worthy of note that the motive of demand and acceptance of the bribe has also not been properly established. Whether fish which were caught by Mukhtiyar or Idha were less than 9' in length or whether the fish were less than 1/2 kilogram in weight have not been established. It was argued that it was a piece of imagination of the complainam himself that if he could prevail upon the accused to accept the money regularly then he could continue catching any type of fish irrespective of the fact that the fish were less than 9' in length or less than 1/2 kilogram in weight. When the accused did not touch the currency notes the report of the Chemical Analyst that the water turned pink when his hands were washed after adding sodium carbo-note appears to be highly improbable. The most important thing is that the investigating authorities have to complain that when the accused, even according to the prosecution version did not touch the notes then low could the water with which the hands were washed was positive for phenothaline powder.
14. It was also contended that the sanction for prosecution was invalid as the sanctioning authority did not apply its active and dispassionate mind to the facts of the case. Reliance was placed on Madan Mohan Singh v. State of Uttar Pradesh SC 637 and State v. Banshilal Luhadia . In sanction Ex. P 21 it was stated that the hands of the accused were washed in phenophthaline powder which revealed positive results, and therefore, the sanction was granted. From the statements of FW 9 and PW 17, it is also revealed that to sanction was granted as soon a the papers were presented. From these facts, it is difficult to believe that the sanctioning authority could analyse, and consciously apply its mind to the facts and circumstances, of the case in such a hurried manner.
15. The learned Special Judge has, however 'held that as it was the first trap case conducted by Shri Malik, the irregularities in the investigation should be over looked.
16. Having given my most anxious consideration to the evidence on record it is exceedingly difficult to hold that the prosecution has succeeded in bringing the guilt to the accused. Under the circumstances, the accused is entitled the benefit of doubt as the prosecution could not establish the guilt and could not lead evidence which could bring the guilt home to the accused.
17. For the, reasons stated above, the appeal filed by the accused appellant is hereby allowed. The conviction and sentence awarded by, the learned Special Judge are hereby set aside. The accused is already on bail, so he need not surrender. His bail-bonds shall stand cancelled.