G.M. Mir, J.
1. The appellant has been convicted for an offence under Section 5(2) Prevention of Corruption Act, 2006 (Smvt.) and also under Section 161 R.P.C. and sentenced to one year's rigorous imprisonment and a fine of Rs. 100/- on each count but it has been directed that both the sentences shall run concurrently.
2. The case of the prosecution was that the accused appellant in the capacity of Food Inspector approached the complainant Gh. Mohd Quereshi P. W. resident of Mohalla Akhoon Sahib, Hawal, Srinagar, who was manufacturing orange squash etc. in the name and style of 'Queen Provision Store' and demanded a bribe of Rs. 500 from him for hushing up a previous case lodged by the appellant against the complainant and also for getting exemption from obtaining a licence from the Municipality for the said manufacturing concern of the complainant. It is further alleged that the complainant told the accused to come on Sunday i. e. on 3-8-1974 to receive the bribe amount, On 2-8-1974, however, the complainant i. e. Gh. Mohd. Quereshi, lodged F.I.R. Ex p w 2/2 narrating these facts before the Supdt. of Police Anti-Corruption Sgr. and requested for action to be taken against the appellant. A case, thus, came to be registered and the Anti-Corruption Organisation arranged a trap on 3-8-1974. It is alleged that on that date the appellant came to the residence of the complainant to receive the amount of the bribe. The appellant accepted Rs. 200/- in hundred rupees currency notes, from the complainant as bribe. These two notes had previously been got initialled by a Revenue Magistrate. The raiding party of the Anti-Corruption Organisation recovered these two marked' currency notes along with other money, from the possession of the appellant in presence of some witnesses, The investigation was completed and the sanction to file the challan against the appellant was obtained from the Govt. and as such a challan was produced in the court of Special Judge Anti-Corruption on 15-11-1975.
3. The learned Special Judge framed charges against the appellant under Section 5 (2) Prevention of Corruption Act as well as under Section 161 R.P.C. The appellant pleaded not guilty.
4. In support of its case the prosecution put in the witness box S/Shri Man-zoor Ahmad Quereshi, Gh, Mohd. Quereshi, Soom Nath Zutshi, Qazi Mohd. Syed and Mohd. Yousuf Inspector,
5. The appellant in his statement under Section 342 Cr. P.C. denied the prosecution allegations and alleged that as he had previously prosecuted the complainant, a false case therefore, has been made out by him and in conspiracy with the police the challan was produced in the Court.
6. The appellant in his defence has in the court of Special Judge Anti-Corruption examined S/Shri Mohd. Maqbool, Gh. Hassan Shah D. Ws. to rebut the prosecution case.
7. P. W. Manzoor Ahmad Quereshi has deposed that Gh. Mojid. Quereshi P. W. was his brother-in-law. On the particular Sunday he had gone to see his sister and when he reached the house of Gh. Mohd. Quereshi he found him in a room along with the appellant. He also found in another big room, which was adjacent to the Kitchen, three more persons amongst whom Mohd. Yousuf Rather Inspector in the Anti-Corruption was one. These three persons were sitting near the wall listening to the conversation going on between the appellant and his brother-in-law. The witness went to a lawn and therefrom saw the three persons entering into the room where the appellant and the complainant were sitting. The witness also entered the room. All the three persons, including Inspector, asked the appellant as to where he had kept the bribe money received from the complainant. The appellant replied that he had received no money as bribe and offered to be searched,- Thereupon one of the three persons searched the appellant and recovered a purse containing Rs. 197/- (one hundred ninety seven) and two one-hundred rupee currency notes. All this was recovered from the back pocket of the pant of the appellant. The numbers of the notes were tallied and some papers were prepared. He signed the Seizure Memo which was EXPW 1/1. According to him at the time the appellant was searched there were six persons including the witness in the room. He further stated that the accused begged pardon from the Anti-Corruption people and told them that he had committed a mistake. He further deposed that all the three persons from the Anti-Corruption Organisation searched the appellant. The appellant, however, did not search any one of them nor the appellant was even asked by the Anti-Corruption Organisation people to search them first.
8. Gh. Mohd. Quereshi P. W. has deposed that he was manufacturing vinegar or orange squash in a small sort of a factory in his house for which he was holding a Govt. of India licence. In his absence one day the appellant visited his house and asked his children to open the lock of the factory. The appellant went inside, and seized two bottles of vinegar which were later found adulterated and thus a challan came to be presented against him in a court of law for this reason. Later the appellant told him that as he was not having the licence of the State to run the factory and that the same was therefore an offence. The appellant told him that he was already Involved in a case of adulterated vinegar but if he co-operated with him he will try to save him and the case already lodged against him also would be hushed up. The appellant demanded Rs, 500/- for this purpose. The complainant told him that if he came to him tomorrow he will pay him Rs. 200/-. The appellant thereupon left his house. The complainant, however, went to the Anti-Corruption Organisation and revealed the whole matter to the Supdt. of Police there. On the suggestion of the Supdt. of Police the complainant presented Rs. 200/- in two one-hundred currency notes and both these notes were then got signed by Qazi Mohd. Syed Magistrate/Assistant Commissioner. He filed a written complaint EXPW 2/2 in the office of the S. P. Anti-Corruption Organisation. The two currency notes were delivered back to him to be handed over to the appellant. It was on Sunday at about 8-9 A.M. the two Inspectors and Qazi Sahib came to his house and he put them in a room in the hall of the factory. After some time the appellant also came to his house. Both entered into the room adjacent to the hall. The appellant asked him to give what he wanted to give for hushing up the earlier case and for doing other matters, for the complainant The complainant thereupon gave two signed hundred Rupee notes to the appellant who kept the same in the back pocket of his pant. The complainant coughed and Qazi Sahib and the Inspector entered the room where they were sitting. There were other police officials also who came 'n. The Inspector asked the appellant if he had taken any money as bribe from the complainant which the appellant denied. He was repeatedly asked to take out the money but he refused to have taken any. Thereupon Inspector Mohd. Yousuf recovered the two currency notes from the back pocket of the pant of the appellant. A purse containing Rs. 197/- was also recovered. The numbers of the notes were tallied and the seizure memo EXPW 1/1 was prepared which the witness also signed. He admitted that the notes initialled by Qazi Mohd. Syed did not bear any date. According to him Mohd. Yousuf Inspector was not searched by anybody but when he searched the pockets of the appellant he had shown his empty hands. The other Inspector was not also searched. His next door neighbour was one Gh. Hassan. The police party or the Magistrate did not send for Gh. Hassan either before or after the search. All the pockets of the accused were searched one by one. Even Qazi Sahib searched the pockets of the appellant. It was a fact that he had not informed the Municipality that he was running a factory nor the Municipal authority had informed him that for this purpose he required a licence. The report EXPW 2/2 was drafted by some policemen on spot. Mohd. Yousuf Inspector had asked some policemen to hear the witness and draft the F.I.R. The witness has next deposed that it was either on Thurday or on Friday that the appellant had told him that he would visit him on Sunday. When asked as to why he did not go to the Police either on Thursday or on Friday, he could not give any reason for the same. The witness did not know that to run such a business it was necessary to obtain a licence from Srinagar Municipality also. In another challan against the witness he was sentenced to a fine by a Court in Sopore. In the re-examination the witness, however, has resiled from the earlier statement and has deposed that it was wrong to say that the appellant had met him either on Thursday or on Friday as in fact the appellant had met him on Saturday and on the very day he lodged the report with the Anti-Corruption Organisation.
9. Pt. Soom Nath Zutshi is the office Superintendent in the Srinagar Municipality. According to him there were a number of Food Inspectors appointed in different wards whose duty it was to detect adulteration in eatable foods after taking samples. According to him if any one was manufacturing vinegar and orange squash under the licence issued from India he had to obtain a licence from Srinagar Municipality also.
10. Qazi Mohd. Syed Assistant Commissioner Nazool has deposed that on 2-8-1974 he was called by Anti-Corruption Organisation and when he reached the office of the Anti-Corruption Organisation he found the complainant Gh. Mohd. Quereshi talking to the Superintendent of Police, Anti-Corruption Organisation and telling him that one Food Inspector was demanding bribe from him regarding licence. Ghulam Mohd. Quereshi presented two notes of hundred-rupee denomination to him and he put his initials on both these notes. The notes were returned to Gh. Mohd. Quereshi on Saturday. It was on Sunday at 8 A.M. that the witness went to the house of the complainant in a jeep brought by Mohd. Yousuf Inspector Anti-Corruption Organisation. They sat in one room of the house of complainant and it was at about 11.30 A.M. that the Food Inspector, the appellant, came to the complainant's house who made him to sit in another room. The complainant served tea to the appellant and both of them were talking. The witness and others were standing in another room and were over-hearing the conversation going on between the complainant and the appellant. As the complainant coughed the Magistrate and the two other persons got signal and upon this Mohd. Yousuf and another constable entered the room where the appellant and the complainant were sitting. On being asked the appellant denied that he has received any money as bribe. Mohd. Yousuf showed his empty hands and searched the pockets of the pant of the appellant from where a purse was recovered and also two currency notes of hundred rupees each. He inspected the notes and identified the signature on the same and tallied the numbers. The notes were the same. He said that he was a Magistrate since 1952. He admitted to have taken part in three trap cases at the instance of Anti-Corruption Organisation though on no occasion the request by Anti-Corruption Organisation was made to him in writing. When he went out on Sunday for the trap matter he did not inform the District Magistrate that he was leaving for this purpose on a day which was a Holiday. He has admitted that while he was Tehsildar Gulmarg somebody had filed a complaint against him and others, for illegally cultivating potatoes in Rani Mandir. He has also admitted that there was a departmental enquiry against him regarding a piece of land purchased by his wife. In the house of the complainant they were sitting in a room from where they could neither see the complainant nor the appellant but could only hear their voices. It was true that the Inspector only showed his empty hands when he searched the appellant. The witness also searched the appellant. The witness and Mohd. Yousuf Inspector had been both stationed in Gulmarg and both of them participated in the University trap case.
11. Mohd. Yousuf Rather Inspector was posted in Anti-Corruption Organisation. The complainant presented written report EXPW 2/2 to the Supdt. of Police. The complainant presented two currency notes of hundred rupees each which were got initialled by Qazi Mohd. Syed, the Revenue Magistrate. The case was registered. On the following day he and Assistant Commissioner went to the house of the complainant. The appellant came thereafter. The appellant and the complainant went into one room and the witness and others were in the other. The appellant was demanding Rs. 500/- but the complainant agreed to pay Rs. 200/- to the appellant. The complainant coughed and upon this the witness and others entered the room from behind. In the meantime Manzoor Ahmad witness also turned, up. The appellant was searched and the purse and two hundred-rupee currency notes were recovered from his pocket. The numbers of the notes were tallied and the seizure memo was prepared. He has next stated that it was from 1962 when he was in Gulmarg that he knew Qazi Mohd. Syed. He, however, did not know whether there was any case pending against Qazi Mohd. Syed in the Anti-Corruption Organisation. In the neighbourhood of the complainant's house one Gh. Hassan lived. He called Gh. Hassan on spot but though Gh. Hassan came he immediately gave them a slip and ran away. Though he recorded the statement of one Mohd. Maqbool but he has not been produced as a witness as he had not seen the whole occurrence. He has denied that three persons searched the appellant.
12. The appellant in his statement under Section 342 Cr. P.C. has denied the prosecution allegation that he demanded Rs. 500/- as bribe from the complainant so as to save him from the case lodged against him and also for permitting him to run the factory without obtaining a licence. He has denied that two notes of hundred-rupee each were recovered from him which were received by him as bribe. A purse containing Rs. 197/- was only recovered from him. He has stated that the case against him was false.
13. In his defence the appellant has examined Mohd. Maqbool and Gh. Hassan D. Ws. besides getting on record certain attested copies regarding enquiry held against Qazi Mohd. Syed P. W.
14. Mohd. Maqbool D. W. stated that he was a house servant of Gh. Mohd. Quereshi PW. In his presence the appellant was searched but only a purse was recovered from him.
15. Another witness Gh. Hassan Shah D. W. stated that he knew both the complainant and the appellant previously. Once the appellant was sitting in his house when the complainant came and told him that he wanted to talk to him privately, but the appellant told him to speak out whatever he had to say. This happened twice. On the third time when the complainant again came the appellant went to the house of the complainant and after a while they came to know that the appellant has been arrested.
16. I have heard learned Counsel for the parties at length.
17. One of the main points raised by the learned Counsel for the appellant was that the whole trial of the appellant before the Special Judge Anti Corruption was illegal and consequently the orders passed were void as it was necessary for the prosecution to obtain sanction before the prosecution against the appellant could have been launched. It is submitted that the sanction has been obtained but as the facts of the case reveal the alleged sanction was issued by the Government and not by Municipality or any officer authorised to do so under the Municipal Act. It has been contended that the allegation against the appellant was that he demanded and obtained bribe from the complainant in the capacity of a Food Inspector. The fact that he was in the permanent employment of the Municipality is not denied. The fact that the appellant was given additional powers to work as Food Inspector is admitted. The argument under the circumstances was that the appellant being the permanent servant of the Municipality, the sanction to launch a prosecution against him should have been obtained from an authority appointed for this purpose by the Municipality, say, Executive Officer of the Municipality. The appellant was holding powers as Food Inspector only in addition to his own, powers as an employee of the Municipality. Under Section 6 of the Prevention of Corruption Act. 2006 (Smvt) only such Authority can sanction prosecution which was competent to remove public servant from the office. In the instant case it was obvious that it was only the Municipality which could remove the appellant from service. Municipality was an independent body and was not under Government. The appellant continued as a Sanitary Inspector even though he worked as a Food Inspector also. In the instant case the appellant on the date of the commission of the offence was holding the office of the Food Inspector as also that of the Sanitary Inspector. The appellant was holding the office of the Food Inspector by virtue of S.R.O. 297 under which powers had been conferred on him and at the same time he was holding the office of the Sanitary Inspector as he was substantively appointed as Sanitary Inspector. The appellant was holding powers as Food Inspector and it was open to the conferring authority to withdraw such powers whenever it deemed fit to do so. What is required under Section 6 is not competency of the person to revoke the powers but the competency of such person to remove the the public servant from the office. Under Section 126 of the Constitution of J. & K as also Article 311 of the Constitution of India, a guarantee is given to a public servant against dismissal, removal or reduction in rank except under the order of a competent authority which in other words means the appointing authority. If we consider the point, in this backdrop it would be apparent that the Municipality, being an autonomous body, and being a creature of Municipal Act, was the only competent Authority to remove or dismiss the appellant from service or give permission for launching prosecution against him. The power of the Government to control the functions of the Municipality is restricted only to the dissolution of the Municipal Council under Section 259 of the Municipal Act and to pass consequential orders. The Government under the Municipal Act could not appoint any person in the Municipality except the Executive Officer. In this view of the matter it cannot be said that the Government was a superior authority for purposes of termination or removal from service of an employee of the Municipality. It was not correct to say that by virtue of SRO 297 the appellant was appointed afresh as Food Inspector, as the order appointing the appellant in the Municipality would render itself useless in that case.
18. The argument that as the Executive Officer is appointed by the Govt. so the Municipality in that context could be considered under the Government, was also fallacious, as in law what is required, is to find out as to which authority is competent to appoint the appellant notwithstanding the appointment of such Authority.
19. It is true that the Government has power to transfer an officer or official from one local body to. another but it is significant that under Section 252-A of the Municipal Act the order of transfer cannot be passed in a manner which will have the effect of altering the service conditions of the transferee employee.
20. In the light of these arguments, the Court is of the view that the appellant is the employee of the Municipality and therefore, the sanction for prosecuting him could have been issued only by 'the Municipality through its Administrative Officer i.e. Executive Officer of the Municipality.
21. In law for convicting a person for obtaining bribes, it was necessary to establish three ingredients, namely : - demand, acceptance and the recovery of the bribe. All the three requirements must be fulfilled by the prosecution. Mere recovery of money does not mean that the appellant . must have demanded the same and accepted the same. Manzoor Ahmad PW is admittedly a chance witness. We may. not, however, outright reject his deposition) but great care is to be taken in scrutinising his deposition. Qazi Mohd Syed the Magistrate appears to have accompanied the Anti Corruption Organisation raid parties several times. May be, he is not speaking untruth. But it appears he has become a convenient witness and as such his statement also requires to be scrutinised with great care; besides he himself has been proceeded against and several enquiries have been pending against him. It has been argued that his one increment was stopped and investigation was going on in other matters. He was, therefore, a witness upon whose Statement alone no conviction could be reasonably, based upon. 22. The recovery as alleged of the initialled two notes of hundred rupees each is also doubtful as the police officer concerned appears not to have been either searched at all or not fully searched. It is also in the evidence that all the three officers including the Revenue Magistrate searched the appellant. Why it was done when allegedly the complainant himself had told them that the appellant has put the money in the hip pocket. In the F.I.R. the complainant had said.
'taqriban chhar yuum qabal' the accused had come to him and demanded the bribe. The learned Special Judge has put off this matter considering it to be negligible affair, which of course it was not.
23. In his statement the complainant has said that even Superintendent of Police Anti Corruption Organisation initialled the notes. He has further said that after paying Rs. 200/- to the appellant he promised to pay the remaining amount soon. But on going through the F.I.R. it would be apparent that Rs. 200/-, were paid in final settlement. The complainant has deposed that he was illiterate and therefore, got the F.I.R. written by a police-walla but the Investigating Officer says in his deposition that this could not be so.
24. Ghulam Hassan neighbour of the appellant had come on spot according to the Investigating Officer, but he has not been cited as a prosecution witness by the prosecution. On the contrary he was produced as a defence witness. The witness has supported the case of the defence. Mohd. Maqbool has not been produced by the prosecution and has been given up. He was a witness of the occurrence, and it appears that he might have deposed something which might have gone against the prosecution story. He has, however, been produced as D.W. and has supported the case of the Defence. The recovery of the alleged bribe money has become doubtful. The complainant's version does not get corroboration. It is strange that the trousers, from one of the hip pockets of which as alleged, the bribe money was recovered, has not been seized to establish that it in fact had such a hip pocket.
25. It is alleged that the conversation that took place between the appellant and the complainant in one room was over-heard by the raiding party sitting in another. It is doubtful whether such a thing could occur. It seems to be a made up story and has to be rejected as such.
26. In case of corruption there must be some evidence for demand as otherwise money could be secretly put in the hand or pocket of any body and later recovered and described as 'bribe money'. It must positively be established that the demand was made. It must also be established that the bribe taker consciously accepted the money as bribe. There must be recovery of the bribed .money in a manner which would convince that the recovery was in accordance with the rules and law. Had the notes in this case been powdered and later the hands of the appellant washed it might have assisted in establishing that the accused had consciously accepted the money.
27. After going through the record and considering all the evidence led in the case, the court is of the view that the prosecution has not been able to prove its case beyond reasonable doubt,
28. This appeal is accordingly accepted. The conviction and sentence passed against the appellant under both counts namely Section 5 (2) Prevention of Corruption Act and Section 161 R. P. C. are hereby set aside and he is hereby acquit-ed of the charges. The amount of Rs. 197/- which also appears to have been seized by the Anil Corruption Organisation in the case along with purse shall be returned to the appellant. The alleged bribe money i. e., two currency notes of hundred rupee each shall forfeit to the State. The appellant is on bail. His bail bonds shall stand discharged.
29. The appeal is accordingly allowed and disposed of.