C. Jagannadhacharyulu, J.C.
1. This is an appeal filed by the State of Tripura against the judgment and acquittal of one Shri Ashu Ranj an Saha, Food Inspector working in Agartala Municipality, of the offences under Section 161 I. P. C. and Section 5(2) of the Prevention of Corruption Act (Act 2 of 1947) by Shri T.K. Pal, M.A.,B.L., Special Judge, Agartala in the Special Court case No. 1 of 1965.
2. The case of the prosecution, as brought out in the evidence, is that the respondent, who is working as Food Inspector in Agartala Municipality, visited the grocery shop of the complainant P.W. 4 Sachindra Chandra Datta in Battala Bazar at about 10 or 11 A. M. on 11-4-1964. The respondent seized 8 tins of mustard oil, weighing 17 to 18 seers, 2 maunds of turmeric and 5 seers of coconut oil from his shop, under the provisions of the Food Adulteration Act (Act 37 of 1954). After giving notice Ext. P-7 dated 11-5-1964 of his intention to take sample, the respondent took sample of 2 chhataks of mustard oil out of the seized oil. He paid the price for the same and gave Ext. P-8 receipt for the sample to P.W. 4 (Sachindra Chandra Datta). P.W. 4 (Sachindra Chandra Datta) protested that his commodities were not adulterated. The respondent, however, allowed the seized articles to be kept in the custody of P.W. 4 (Sachindra Chandra Datta).
3. On 17-6-1964, the respondent again visited the shop of P.W. 4 (Sachindra Chandra Datta) and asked him to give him a sample of turmeric seized by him. The respondent purchased a sample of the turmeric and gave P.W. 4 (Sachindra Chandra Datta) Ext. P-9 receipt dated 17-9-1964. P.W. 4 (Sachindra Chandra Datta) again told the respondent that he was unable to sell the seized articles and that he had no money to purchase more of the articles from the wholesalers and requested him to release the articles. The respondent asked P.W. 4 (Sachindra Chandra Datta) to see him in the office of Agartala Municipality.
4. On 18-6-1964, P.W. 4 (Sachindra Chandra Datta) went to the office in Agartala Municipality. Then P.W. 15 (Birendra Chandra Banik} met P.W. 4 (Sachindra Chandra Datta) in the office and on enquiry learnt that P.W. 4 (Sachindra Chandra Datta) had come to the office of the Municipality in connection with the seizure of his commodities by the respondent. P.W. 4 (Sachindra Chandra Datta) met the respondent in his room in the office and requested him to release his commodities. The respondent demanded payment of bribe of Rs. 300/-and promised to release all the commodities and not to take any action against P.W. 4 (Sachindra Chandra Datta). But the latter pleaded that he was a poor man and could not afford such a huge money. Ultimately, the bargain was struck at Rs. 250/-. P.W. 4 (Sachindra Chandra Datta) promised to pay the amount in 4 or 5 days' time. After coming home, P.W. 4 (Sachindra Chandra Datta) narrated what had happened to his brother P.W. 6 (Nani Gopal Datta). P.W. 4 (Sachindra Chandra Datta) also made up his mind that, as the respondent was demanding payment of bribe, he would pay it and at the same time see that the respondent was arrested by the police.
5. At about dusk on 22-6-1964, P.W. 4 {Sachindra Chandra Datta) came to a place to the west of Battala Choumohani with P.W. 5 (Sunil Chandra Banik), another grocer of Battala Bazar. P.W. 4 {Sachindra Chandra Datta) saw the respondent who called him. P.W. 5 (Sunil Chandra Banik) went away. The respondent demanded the bribe amount of Rs. 250/- as agreed to on 18-6-1964. But, P.W. 4 (Sachindra Chandra Datta) plead-ed that he had no money with him and that he would pay it on the next day. On his enquiry as to where he should pay the money, the respondent told him that he would be near a fruit stall at Kaman Choumohani after dusk and that he should pay the amount there. P.W. 4 (Sachindra Chandra Datta) went back to his shop and told his brother P.W. 6 (Nani Gopal Datta) what had happened.
6. On 23-6-1964, P.W. 4 (Sachindra Chandra Datta) wrote Ext. P-1/1 petition addressed to P.W. 8, Shri N.R. Bose, S.P., Tripura to take action against the respondent for demanding payment of bribe. P.W. 8 the S.P. questioned P.W. 4 (Sachindra Chandra Datta) and assured him that he would take the necessary action. P.W. 4 (Sachindra Chandra Datta) went back to his shop. P.W. 8 the S.P. made an endorsement on Ext. P-1/1 in favour of P.W. 1 Monoranjan Bhattacherjee, Dy. S.P., Special Branch, Tripura, directing him to examine P.W. 4 (Sachindra Chandra Datta) and to work out the information. At about 4 P. M., P.W. 1 the Dy. S.P. called P.W. 4 (Sachindra Chandra Datta) through P.W. 2 (Swadesh Ranjan Paul), S. I, Special Branch to his office at Ronaldsay Road. After arrival of P.W. 4 (Sachindra Chandra Datta), P.W. 1 the Dy. S.P. interrogated him and recorded his statement Ext. P-10/3. P.W. 4 (Sachindra Chandra Datta) showed him 25 ten-rupee currency notes Exts. M-l to M-25, which he proposed to hand over to the respondent as bribe money. P.W. 1 Dy. S.P. noted the numbers of the currency notes on the statement of P.W. 4 (Sachindra Chandra Datta) recorded by him.
Thereafter, accompanied by P.W. 11 (Ramanuj Bhattacherjee) Circle Inspector, P.W. 2 (Swadesh Ranjan Paul) S. I., P.W. 3 (Kamal Das Gupta), S. I. and P.W. 4 (Sachindra Chandra Datta), P.W. 1 Dy, S.P.Went to the office of P.W. 7, the then S. D. M. Shri Premananda Nath. He submitted Exts. P-1/1 and P-10/3 with Ext. P-2 requisition for issuing a search warrant against the respondent. P.W. 7 the S. D. M. compared the numbers of the currency notes Exts. M.1 to M-25 with those mentioned in the statement and issued Ext. P-3 search warrant in favour of P.W. 1 Dy. S.P. for searching the person of the respondent.
7. P.W. 1 Dy. S.P.Went to the Kotwali police station along with P.Ws. 2 (Swadesh Ranjan Paul), 3 (Kamal Das Gupta} and 11 (Ramanuj Bhattacherjee) police officers and P.W. 4 (Sachindra Chandra Datta) the complainant. P.W. 4 (Sachindra Chandra Datta) went away to Kaman Choumohani under the direction of P.W. 1 the Dy. S.P. A little later, P.W. 1 Dy. S.P.Went to Kaman Choumohani along with the police officers P.Ws. 2 (Swadesh Ranjan Paul), 3 (Kamal Das Gupta) and 11 (Ramanuj Bhattacherjee) and also with P.W. 9 (Nirmal Kumar Majumden officer-in-charge of Kotwali police station and P.W. 12. (Upendra Chandra Paul a non. official, witness. After some time, the respondent was seen coming from the southern side along the Central road in a rickshaw. The rickshaw stopped at a spot near the place where P.W. 4 (Sachindra Chandra Datta) stood and the res-nondent alighted from it. P.W. 4 (Sachindra Chandra Datta) and the respondent proceeded together towards the northern side. After they came in front of a fruit stall to the north of Kaman Choumohani, the respondent asked P.W. 4 (Sachindra Chandra Datta) to pay him the money.
Then, P.W. 4 (Sachindra Chandra Datta) handed over Exts. M-l to M-25 in one bundle, which the respondent put inside the breast pocket of his shirt. P.W. 4 (Sachindra Chandra Datta quickly went away. The respondent moved forward to a betel stall. Just then, P.W. 11 (Ramanuj Bhattacherjee) the Circle Inspector also came to the stall keeper and asked him to give him a pan. P.W. 10 (Sachindra Kumar Paul) the stall holder gave them pan. P.W. 1 the Dy. S.P. came, followed by the other police officers and asked the respondent his name and profession. The respondent told him that his name was Ashu Ranjan Saha and that he was employed as Food Inspector in Agartala Municipality. P.W. 1 the Dy. S.P. then showed him Ext. P-3 search warrant and asked him to come to Agartala Pharmacy, which was to the west of the pan stall. P.Ws. 1 and 11 Dy. S.P. and Circle Inspector escorted the respondent to Agartala Pharmacy, where P.W. 14 (Sukhendu Bikash Paul) proprietor of the Pharmacy was also present. After the other witnesses also came, P.W. 1 Dy. S.P. showed the respondent Ext. P-3 and after P.W. l's body was searched by the respondent, P.W. 1 Dy. S.P. asked the respondent to produce the money which he had with him.
The respondent produced Exts. M-l to M-25, the numbers on which tallied with those mentioned in Ext. P-3. P.W. 1 Dy. S.P. prepared Ext. P-4 search list in duplicate and got it attested by all the witnesses and obtained the signature of the respondent on Ext. P-4. P.W. 1 Dy. S.P. handed over a copy of Ext. P-4 to the respondent and arrested him and took him away to the Kotwali police station. He lodged Ext. P-5 F. I. R. with the Officer-in-Charge of Kotwali police station. The case was registered in Kotwali P. S. as case No. 37(6)64 under Section 161 I. P. C. and Section 5(2) of the Prevention of Corruption Act against the respondent.
8. P.W. 1 the Dy. S.P. took up the Investigation and examined P.W. 13 (Rabindra Kumar Ghosh) Administrator of Agartala Municipality and seized certain documents under Ext. P-6.
9. Under the orders of P.W. 8, S.P. the investigation was taken over by P.W. 17 (Santi Ranjan Bardhan) Dy. S.P. In charge of Home Guards from P.W. 1 Dy. S.P. on 14-7-1964. P.W. 17 (Santi Ranjan Bardhan) the Dy, S.P. completed the investigation and filed the charge-sheet.
10. The learned Special Judge framed two charges against the respondent one under Section 161 I. P. C. and another under Section 5(2) of the Prevention of Corruption Act, 1947 to which the respondent pleaded that he was not guilty. His defence was that in the dusk of 23-6-1964 he had been to Kaman Choumohani for checking adulteration and sale of unwholesome milk, that when he was passing along the road, P.W. 4 (Sachindra Chandra Datta) told him that he had a letter for the respondent and thrust art envelope into the breast pocket of the respondent and ran away, that, as the respondent had suspicion, he called P.W. 4 (Sachindra Chandra Datta) loudly saying what it was that he had put inside his pocket calling it a letter, that a large crowd gathered, that he did not demand or take any bribe and that on account of malice, P.W. 4 (Sachindra Chandra Datta) and the police officers conspired against him.
11. The learned Special Judge throughly discussed the evidence and held that the charges against the respondent were not made out. He further held that there was no valid sanction for the prosecution of the respondent. He, therefore, acquitted the respondent. Hence the appeal by the State Government.
12. The points which are argued and which arise for determination are:
(i) whether the charges under Section 161 I. P. C. and under Section 5(2) of the Prevention of Corruption Act, 1947 were brought home against the respondent and whether he is guilty of the same and
(ii) whether there was a valid sanction for the prosecution of the respondent.
13. POINT (I)
It is well settled that, though in the case of an appeal against judgment of acquittal the High Court is entitled to review the evidence, yet proper weight should be given to the following matters:
(i) the views of the trial Court as to the credibility of witnesses.
(ii) the presumption of innocence, which is strengthened by the acquittal.
(iii) the right of the accused to the benefit of the doubt and
(iv) the reluctance of the appellate court to disturb a finding arrived at by the trial Judge after seeing the witnesses. Vide Wilayat Khan v. State of U. P. : AIR1953SC122 , Shiv Bahadur Singh v. State of Vindhya Pradesh : 1954CriLJ910 and Bansidhar Mohan-ty v. State of Orissa : 1955CriLJ1300 .
13-A. The evidence let in by the prosecution to prove the guilt of the respondent can be analysed under four heads. The first category of evidence relates to that which was alleged to have happened on 18-6-1964 in the room of the respondent in the office of the Municipality in Agartala. There is no dispute that the respondent seized 8 tins of mustard oil weighing 17 to 18 seers, 2 maunds of turmeric and 5 seers of coconut oil on 11-5-1964 from the grocery shop of P.W. 4 (Sachindra Chandra Datta) the complainant and purchased a sample of mustard oil as can be seen from Exts. P-7 and P-8 and that he kept the seized articles in the custody of P.W. 4 (Sachindra Chandra Datta). There is also no dispute that on 17-6-1964 the respondent again visited the shop of P.W. 4 (Sachindra Chandra Datta) and seized sample of turmeric as can be seen from Ext. P-9. P.Ws. 4 (Sachindra Chandra Datta) and 6 (Nani Gopal Datta) speak to the seizure and the respondent admits the same. But, according to the prosecution, on 17-6-1964, when P.W. 4 (Sachindra Chandra Datta) requested the respondent to release the seized commodities, the respondent asked P.W. 4 (Sachindra Chandra Datta) the complainant to see him in his room in the office of Agartala Municipality, that accordingly, on 17-6-1964 P.W. 4 (Sachindra Chandra Datta) went to the office, that in the office he met P.W. 15 (Birendra Chandra Banik) and told him that he had come to the office in connection with the seized articles, that later on he saw the respondent in his room and that in the room the bargain was struck for payment of bribe money of Rupees 250/-, which the respondent promised to pay after some days.
The prosecution thus alleges that the bargain took place in the room of the respondent in the office of the Municipa lity in Agartala on 17-6-1964. To prove the bargain there is only the evidence of P.W. 4 (Sachindra Chandra Datta). It is correct to state that in such matters it is unnatural that a bargain for payment of bribe would take place in the presence of witnesses. But, there are very material circumstances, which throw doubt on the evidence of P.W. 4 (Sachindra Chandra Datta). Firstly, he never mentioned in Ext. P-1/1 the petition filed by him before P.W. 8 S.P. that there was such a bargain on 17-6-1964. Secondly, the evidence of P.W. 8 S.P., who questioned P.W. 4 (Sachindra Chandra Datta) at about 8 A. M. on 24-6-1964 also does not show that he was informed that there was any such bargain between the respondent and P.W. 4 (Sachindra Chandra Datta) on 18-6-1964. Thirdly, even when P.W. 1 Dy. S.P., S. B, recorded Ext. P-10/3 statement of P.W. 4 (Sachindra Chandra Datta) before the trap the latter never told him that there was a bargain between him and the respondent in the room of the respondent in the office in Agartala Municipality on 18-6-1964. Thus, the consistent absence of this material allegation in Exts. P-l/l and P-10/3 and before P.W. 8 S.P. clearly shows that this was an afterthought.
Again, even the evidence of P, W. 15 (Birendra Chandra Banik) that he met P.W. 4 (Sachindra Chandra Datta) in the Agartala Municipal office on 18-6-1964 is-also doubtful. For, not only is the name of P.W. 15 (Birendra Chandra Banik) not found in Exts. P-l/l and P-10/3 but also' the evidence of P.W. 15 (Birendra Chandra Banik) shows that it cannot be relied upon. P.W. 17 (Santi Ranjan Bardhan) the Investigating Of ficer examined him on 31-7-1964, though he took over the charge of investigation on 14-7-1964 according to his evidence. Besides, P.W. 17 (Santi Ranjan Bardhan) recorded the statement under Section 161 Cr. P. C, that P.W. 15-(Birendra Chandra Banik) met P.W. 4 (Sachindra Chandra Datta) in the Municipal office on 18-7-1964 and not on 18-6-1964. P.W. 15 (Birendra Chandra Banik) denied having stated before P, W. 17 (Santi Ranjan Bardhan) that he met P.W. 4 (Sachindra Chandra Datta) in the Municipal office on 18-7-1964. According to P.W. 17 (Santi Ranjan Bardhan) he wrongly mentioned the date of 18-6-1964 as 18-7-1964. At any rate, it is not the case of the prosecution that P.W. 15 (Birendra Chandra Banik) was also present along with P.W. 4 (Sachindra Chandra Datta) when the bargain for payment of bribe was struck.
In view of the fact that the evidence of P.W. 4 (Sachindra Chandra Datta) is contradicted by Exts. P-l/l and P-10/3 no reliance can be placed on the evidence of P.Ws. 4 (Sachindra Chandra Datta) and 15 (Birendra Chandra Banik).
14. The second category of evidence relates to the case of the prosecution that on 23-6-1964 P.W. 4 (Sachindra Chandra Datta) the complainant and P.W. 5 (Sunil Chandra Banik) of Battala Bazar were going to Battala Choumohani. that there the respondent called P.W. 4 (Sachindra Chandra Datta), that P.W. 4 (Sachindra Chandra Datta) went to meet him, while P.W. 5 (Sunil Chandra Banik) went away and that the respondent asked P.W. 4 (Sachindra Chandra Datta) about the payment of the bribe money agreed upon on 18-6-1964, that P.W. 4 (Sachindra Chandra Datta) told him that he did not have the money and promised to pay it on the next day and that the respondent fixed the venue at a fruit stall near Kaman Choumohani as the place where he should pay the bribe money. Here again, there is only the evidence of P.W. 4 (Sachindra Chandra Datta) to prove the talks, alleged to have taken place between him and the respondent. Of course, the general evidence of his brother P.W. 6 (Nani Gopal Datta) to whom P.W. 4 (Sachindra Chandra Datta) was alleged to have narrated the story is of no weight because P.W. 6 (Nani Gopal Datta} is not an eye-witness. It is pertinent to note that P.W. 4 (Sachindra Chandra Datta) did not mention this important aspect of the case in Ext. P-l/1. Nor did he mention this to P.W. 8 the S P on 24-6-1964. Nor was this disclosed by him to P.W. 1 the Dy. S.P. in Ext P-10/3 statement recorded by P.W. 1 Dy. S.P.
So, here again the consistent absence of such an important and material aspect of the prosecution version in Exts. P-l/1 and P-10/3 and before P.W. 8 the S.P. throws suspicion over the case of the prosecution. The evidence of P.W. 5 (Sunil Chandra Banik) is not of much avail except to show that at dusk time on 22-6-1964 he saw the respondent and that P.W. 4 (Sachindra Chandra Datta) went and talked with him. But, even P.W. 5 (Sunil Chandra Banik) is not an independent witness. He was examined by P.W. 17 (Santi Ranjan Bardhan) on 16-7-1964. It was suggested to P.W. 5 (Sunil Chandra Banik) that the respondent seized coloured rice from the shop of his brother Gopal Banik, that the same was destroyed under the orders of the S. D. M. and that, therefore, P.W. 5 (Sunil Chandra Banik) was inimically disposed towards the respondent. P.W. 5 (Sunil Chandra Banik) denied that any such thing had happened to his knowledge. But, P.W. 13 (Rabindra Kumar 'Ghosh) the Administrator of Agartala Municipality admitted in his cross-examination that the respondent seized coloured rice from the said shop and that the same was destroyed. Though P.W. 5 (Sunil Chandra Banik) stated that he and his brother were living separately, he admitted that both of them jointly purchased one house.
So, his denial only shows that he is not a witness of truth. As such, even this aspect of the case of the prosecution has not been proved beyond reasonable doubt, 15. The third aspect of the case is that -after P.W. 4 (Sachindra Chandra Datta) the complainant went to Kaman Chou mohani the other witnesses namely, P Ws. 1 (Dy. S.P.), 2 (S. I.), 3 (S. I), 9 (S. I.), 11 (C. I.) and 12 (Upendra Chandra Paul), a resident of Nandannagar took their stand by spreading themselves in Kaman Choumohani, that within a short time the respondent came in a rickshaw, that he got down from the rickshaw at the place where P.W. 4 (Sachindra Chandra Datta) was standing, that P.W. 4 (Sachindra Datta) and the respondent proceeded towards a fruit stall, that the respondent asked P.W. 4 (Sachindra Chandra Datta) to pay him the bribe, that P.W. 4 (Sachindra Chandra Datta) handed over Exts. M-1 to M-25 in one bundle, that the respondent put the bundle in the breast pocket of his shirt and that the respondent asked him to meet him on the next day. All these witnesses stated that they saw P.W. 4 (Sachindra. Chandra Datta) handing over Exts. M-l to M-25 to the respondent and the respondent putting the bundle in his pocket.
As rightly pointed out by the learned trial Judge, except the interested testimony of P.W. 4 (Sachindra Chandra Datta) there is no other evidence to show that the respondent asked P.W. 4 (Sachindra Chandra Datta) in front of the fruit stall to pay him the bribe money, and that after payment of the money the respondent asked P.W. 4 (Sachindra Chandra Datta) to meet him on the next day. The learned Special Judge points out that P.Ws. 2, 3. 9 and 11 are all police officers who were specially called by P.W. 1 the Dy. S.P. to assist him, that they were all nothing but partisan witnesses and that their evidence cannot be relied upon without independent corroboration. He relied on : 1954CriLJ910 . But, it is not correct to state that a police officer should be disbelieved simply because he figures as a witness, provided his evidence is reliable and credible. Ram Sarup Charan Singh v. The State : AIR1967Delhi26 , Kesho Parshad v. State : AIR1967Delhi51 and Ganpat Singh v. The State . The learned Special Judge discussed their evidence to scrutinize whether their evidence is believable and pointed out a number of discrepancies in their evidence. Besides the discrepancies pointed out by him, there are other circumstances in their evidence which show that they were only too enthusiastic to support the prosecution' version.
While P.W. 3, the S. I. (Kamal Das Gupta) stated that he witnessed the entire transaction, including the search proceedings, yet he deposed in the cross-examination that he did not attest Ext. P-4 the seizure list prepared by P.W. 1, Dy. S.P.When Exts. Ml to M25 were seized by P.W. 1 Dy, S.P. P.W. 9 (Nirmal Kumar Majumder) asserted that he was an eyewitness to the payment of the bribe money by P.W. 4 (Sachindra Chandra Datta) to the respondent. But in the cross-examination he stated that he did not mention in the general diary maintained by him in Kotwali P. S. that he had seen the payment of the bribe by P.W. 4 (Sachindra Chandra Datta) to the respondent and that the respondent produced Exts. Ml to M25 from the breast pocket of his shirt in the course of the search proceedingS.P.W. 1 the Dy. S.P. stated that in his case diary he mentioned the name of P.W. 11 the C. I. only as the police officer who accompanied him to Kamanchoumohani. So, this casts doubt over the evidence of the other police official witnesses. Regarding P.W. 13 (Rabindra Kumar Ghosh) who is the only non-police official witness, as rightly observed by the trial Judge, the circumstances under which he was present were shrouded in mystery.
According to him, he had gone to the Kotwali police station on that day and waited for two hours to meet a relation of his namely, Harendra Paul. But, he did not state why he asked Harendra Paul to meet him in the Kotwali police station. Strangely enough, he deposed that he did not meet Harendra Paul since then. Then according to him, he accompanied the police officers from the kotwali police station without knowing where they were going. According to the respondent, this witness P.W. 14 (Sukhendu Bikash Paul) is a police informant. The circumstances which further belie and improbabilise their evidence and the prosecution case will be presently referred to.
16. The fourth category of evidence relates to the search proceedings. It is the case of the prosecution that after P.W. 1 the Dy. S.P. confronted the respondent with Ext. P-3 search warrant and took him to the neighbouring Agartala Pharmacy, on search Exts. M-l to M-25 were removed by the respondent from his breast pocket and that P.W. 1 the Dy. S.P. seized the same under Ext. P-4 search list. Besides the police witnesses and P.W. 12 (Upendra Chandra Paul) already referred to, P.W. 14 (Sukhendu Bikash Paul) the proprietor of the Pharmacy also deposed to the seizure of Exts. M-l to M-25 from the respondent. P.W. 14 (Sukhendu Bikash Paul) contradicted the other witnesses by stating that the currency notes were in three separate parts and that they were lying with certain papers when they were removed from the pocket of the respondent. He was treated as hostile and cross-examined by the prosecution.
17. But, there are the following circumstances which throw doubt over the evidence of P.Ws. 1 to 4 (Dy. S.P., Swadesh Ranjan Paul, Kamal Das Gupta and Sachindra Chandra Datta), 9 (Nirmal Kumar Majumder), 11 (Ramanuj Bhatacherjee) and 12 (Upendra Chandra Paul) who deposed that they saw P.W. 4 (Sachindra Chandra Datta) handing over Exts. Ml to M25 to the respondent and that they further saw the respondent putting the bundle into his breast pocket.
(i) It is their consistent evidence that immediately after P.W. 4 (Sachindra Chandra Datta) handed over Exts. Ml to M25 to the respondent, he quickly moved away and that within about one minute the police officers swooped on him. If really there was regular bargain between the respondent and P.W. 4 (Sachindra Datta) for the payment of the bribe money and if the respondent voluntarily accepted the same, then there was no need for P.W, 4 (Sachindra Chandra Datta) to quickly move away immediately after he was alleged to have handed over Exts. Ml to M25 to the respondent. He would have waited for some time to see whether the trap succeeded or not. His conduct in running away immediately after he was alleged to have handed over the money to the respondent was not explained by the prosecution and, as rightly pointed out by the learned trial Judge, P.W. 4 (Sachindra Chandra Datta) must have run away in apprehension of being confronted by the respondent with his case that P.W. 4 (Sachindra Chandra Datta) inserted the money in his pocket under a false pretext.
(ii) Secondly, none of the eye-witnesses was examined by P.W. 17 (Santi Ranjan Bardhan) until after 14-7-1964, although the occurrence took place on 23-6-1964. Though according to P.W. 1 Dy. S.P., he filed a memo on 2-7-1964 before P.W. 8 S.P. requesting him to make over the charge of investigation to some other police officer, that paper was not filed into the Court. On the other hand, P.W. 17 (Santi Ranjan Bardhan) simply stated that he took over charge on 14-7-1964 from P.W. 1 Monoranjan Bhattacherjee, Dy. S.P. Until 14-7-1964 P.W. 1 Monoranjan Bhattacherjee, Dy. S.P. must be held to have been in charge of the investigation and he examined only one witness by that date. So, the non-examination of the eye-witnesses was certainly fraught with mischievous possibilities and they might have taken advantage of the delay to make uniform statements before P.W. 17 (Santi Ranjan Bardhan) after mutual consultation. More so is the possibility in view of the evidence of P.W. 1 the Dy. S.P. that his case diary disclosed that only one police officer viz. P.W. 11 the C. I. accompanied him to lay the trap.
(iii) Thirdly, it is improbable that the respondent would have fixed a public place near a fruit stall in a crowded locality like Kaman Choumohani as the venue for the payment of the bribe money to him.
(iv) Fourthly, while according to P.W. 14 (Sukhendu Bikash Paul) the money was in three separate bundles, the other witnesses stated that the currency notes were in a single bundle. According to P.W. 14 (Sukhendu Bikash Paul) there were also some papers along with the bundles. The prosecution produced Ext. P-11 envelope in which Exts. M-l to M-25 were said to have been preserved by P.W. 16 (Chitta Ranjan Bhattacherjee), A. S. I. in the police station. According to him, he entered the seized money in the Malkhana register Ext. P-18 as per Ext. P-18/1 and preserved the money in Ext. P-11. Also, he further stated that he received five papers on 1-8-1964 and put them in Ext. P-12 envelope after making an entry as per Ext. P-18/2. Thus, he explained away the presence of Exts. F-11 and P-12 envelopes. But, in the cross-examination he stated that he did not mention anywhere that he kept the currency notes in an envelope, that Ext. P-11 envelope was not supplied by the Government and that it is a private one. According to P.W. 9 (Nirmal Kumar Majumdar) S.I. of Police the articles in the Malkhana were preserved in envelopes purchased by the office, unless the same had been supplied by the P.W. D. and whenever envelopes were purchased an account in respect thereof had to be maintained. The prosecution did not produce any account to show that the envelopes in question were purchased by P.W. 16 (Chitta Rani an Bhattacherjee). At any rate, the evidence of P.W, 14 (Sukhendu Bikash Paul) that the three bundles were mixed with papers shows that the version of the respondent that P.W. 4 (Sachindra Chandra Datta) inserted something in his pocket stating that he had a letter for him appears to be probable.
(v) Fifthly, almost immediately after the occurrence took place, the respondent came forward with his version that P.W. 4 (Sachindra Chandra Datta) played mischief, P.W. 14 (Sukhendu Bikash Paul) admitted in his cross-examination that after the search was over, the respondent stated that somebody had put something inside his pocket. So, the respondent came forward with his case within a few minutes after the occurrence took place. Again, P.W. 11 the Circle Inspector admitted that, when P.W. 1 the Dy. S.P. showed the search warrant to the respondent in Agartala Pharmacy, the respondent muttered that somebody had put something into his pocket. Even P.W. 1 the Dy. S.P. admitted in his cross-examination that at about 11 P. M. when he interrogated the respondent, the latter stated that when he was taking betel from the betel shop, P.W. 4 (Sachindra Chandra Datta) told him that he had a letter for the respondent and Introduced the letter into his breast pocket and left the place very quickly, but that he had put money into his pocket and that the respondent raised hue and cry. So, even though the respondent did not examine any person from the crowd, it is clear that the respondent set up his case immediately after the incident took place, and this is a strong reason for thinking that his defence was very likely to have been true. Vide Bhagat Ram v. State of Punjab : AIR1954SC621 .
(vi) The sixth circumstance is that P.W. 13 (Rabindra Kumar Ghosh) admitted in his cross-examination that after the respondent was appointed as Food Inspector, the income of the Municipality from the fees from licenses granted to the dealers in rice increased to some extent. So, it is evident that the respondent must have been discharging duties strictly and must have therefore incurred the displeasure of the grocery shopkeepers.
(vii) Last, but not the least, the evidence of P.W. 13 (Rabindra Kumar Ghosh) shows that the respondent intimated to him about the seizure of the commodities made by him and about the samples taken by him both on 11-5-1964 and 17-6-1964 according to the rules and the Prevention of Food Adulteration Act. Ext. D-4 shows that the respondent sent the samples to the Public Analyst for analysiS.P.W. 13 further stated that the respondent had no power to release any article seized by him for the purpose of taking samples for chemical examination except with the permission of the Administrator or the Magistrate. In such a case, it is highly improbable that the respondent would have demanded payment of bribe promising to release the seized articles.
18. The learned Counsel for the appellant contended that the fact that Exts. M-1 to M-25 were seized from the pocket of the respondent raises a presumption under Section 4(1) of the Prevention of Corruption Act and that the burden lay upon the respondent to prove that the money was not bribe money. He relied on Dhanvantrai Balwantrai Desai v. State of Maharashtra : 1964CriLJ437 in support of his contention. In that case it was held that in order to raise the presumption under Section 4(1) of the said Act, the prosecution has to prove that the accused person received a gratification other than legal remuneration and that, when it is so proved, the presumption is raised. In the present case, there is no proof' that the respondent accepted Exts. M-l to M-25 as illicit gratification. But, the respondent's contention that the money was put into his pocket by P.W. 4 (Sachindra Chandra Datta) under a false pretext is more probable than the case of the prosecution. So, no such presumption can be raised. But, even if such a presumption arises, it is sufficiently rebutted. The rebuttal need not be by direct evidence. If there are circumstances which show that the prosecution version is not correct, then the presumption is sufficiently rebutted. Vide V.D. Jhingan v. State of Uttar Pradesh : [1966]3SCR736 .
It was held that the burden of proof lying upon the accused under Section 4(1) of the Act will be discharged, if he establishes his case by a preponderance of probability as is done by a party in civil proceedings and that it is not necessary that he should establish his case by the test of proof beyond reasonable doubt.
19. Thus, the case of the prosecution is highly doubtful and was rightly rejected by the lower Court. I find point (I) in the negative.
POINT (II):
20. The evidence of P.W. 13 (Rabindra Kumar Ghosh) the Administrator of Agartala Municipality is that the Agartala Municipality was superseded with effect from 25-4-1955, that the Chief Commissioner, Tripura assumed all the powers of the Chairman and the Commissioners of the Municipality, that the supersession was made according to the Tripura Municipal Act (Bengal Act XV of 1932) that since 15-8-1961 the Bengal Municipal Act is in force in Tripura in the place of Tripura Municipal Act (Act 2 of 1349 T. E.) and that the Chief Commissioner appointed the District Magistrate, Tripura as the Administrator of Agartala Municipality. He further stated that the respondent was appointed as Sanitary Inspector on 6-2-1963 in Agartala Municipality, that P.W. 13 (Rabindra Kumar Ghosh) himself appointed him with the approval of Shri L.B. Thanga, the then Administrator of Agartala Municipality, that the Chief Commissioner empowered him by Ext. D-8 notification in the official gazette to exercise the powers of Food Inspector under the Prevention of Food Adulteration Act, 1954 within the local municipal area of Agartala and that, therefore, after perusing the papers, he gave sanction Ext. P-13 under Section 6(1)(c) of the Prevention of Corruption Act, 1947 to prosecute the respondent.
The trial Judge held that as the Chief Commissioner appointed the respondent as Food Inspector under Ext. D-8 notification, the sanction should have been given by the Chief Commissioner and not by P.W. 13 (Rabindra Kumar Ghosh). Under Section 292 of the repealed Tripura Municipal Act the Minister concerned had the power to supersede Municipal Commissioners in case of their incompetency, default or abuse of powers. Section 293 of the said Act laid down a number of consequences which followed the order of supersession and empowered the Minister to exercise the powers of the Chairman and the Councillors of the Municipality. The corresponding sections are sections 553 and 554 in the Bengal Municipal Act, 1932. Under Section 553 the State Government has the right to supersede the Commissioners under the circumstances mentioned therein. Section 554 lays down that all the powers and duties of the Chairman and the Commissioners may be exercised by such person as the State Government may direct.
In the present case, the Chief Commissioner representing the Union Territory of Agartaia appointed the District Magistrate, Tripura as the Administrator of Agartala Municipality. So, the latter was competent to exercise all the powers of the Chairman and the Councillors of the superseded Municipality, Under Section 66 of the Bengal Municipal Act the Administrator appointed by the Chief Commissioner had the power to appoint the respondent as Sanitary Inspector. Under Section 9 of the Prevention of Food Adulteration Act the Central Government or the local Government can appoint a Food Inspector by notification in the official gazette if the qualifications of the Food Inspector as laid down in Rule 8 of the Prevention of Food Adulteration Rules, 1955 are satisfied. This is only in the nature of delegation of power to a Sanitary Inspector. Under Section 15 of the General Clauses Act Sanitary Inspectors would be deemed to be a class of officers generally by their official title in the sense in which it was used in Section 39 of the Cr. P. C. As such, Sanitary Inspectors can be appointed by virtue of their office and it is not necessary that their appointments should be made by their names. Vide note 8 at page 49 of Prevention of Food Adulteration Act and Rules by H.B. Shrivastava, 1965 edition and also Public Prosecutor (AP) v. N. Srirambhadrayya : AIR1960AP282 . So, the respondent was appointed as Food Inspector by virtue of his office as Sanitary Inspector and as such P.W. 13 (Rabindra Kumar Ghosn) could be said to be competent to give the sanction.
21. The learned Counsel for the respondent contended that under Section 67 of the Bengal Municipal Act the State Government may require the Commissioners of any Municipality to appoint an executive officer, a Secretary, an Engineer, a Health Officer and one or more Sanitary Inspectors, that under Sub-section (5) of Section 67 they can be removed subject to confirmation by the Government, but that under Section 544 of the said Act, the State Government can delegate to the District Magistrate any of the powers vested in the State Government except those under Sections 6, 8, 13, 15, 17, 67, 135 second proviso, 285, 548, 549, 550, 552 and 553 of the Act. that thus the State Government has no power to delegate its authority under Section 67 of the Act to the Commissioners and that, therefore, P.W. 13 (Rabindra Kumar Ghosh) had no power to appoint the respondent as Sanitary Inspector. Section 67 of the Act empowers the State Government (if it so desires) to call upon the Commissioners of any Municipality to appoint the officers mentioned therein.
But, the Chairman of the Municipality and P.W. 13 (Rabindra Kumar Ghosh) who stepped into his shoes could validly appoint the respondent as Sanitary Inspector under Section 66 of the Act. The provisions of Sections 66 and 67 of the Act are mutually exclusive. The mere delegation of powers to the respondent to be exercised as Food Inspector does not take away the power of the respondent to dismiss him. As can be seen from Mahesh Prasad v. State of Uttar Pradesh : 1955CriLJ249 it is enough that the removing authority is of the same rank or grade as the authority who has appointed the public servant. So, I do not think that the sanction Ext. P-13 given by P.W. 13 (Ptabindra Kumar Ghosh) is illegal.
22. The trial Judge again held that P.W. 13 (Rabindra Kumar Ghosh) did not peruse all the documents and give his sanction and that, therefore, Ext. P-13 is not a valid sanction. In Gokulchand Dwarkadas v. The King AIR 1948 PC 82 and Jaswant Singh v. State of Punjab : 1958CriLJ265 it was held that the papers must be studied properly by the competent authority before the sanction is granted. The evidence of P.W. 13 (Rabindra Kumar Ghosh) in the cross-examination shows that all the statements recorded by P.W. 17 (Santi Ranjan Bardhan) were placed before him, that he perused all the relevant records and that he gave the sanction. There is no reason for disbelieving him.
23. At any rate, the question of validity of sanction need not be pursued at length in view of my finding that the prosecution did not make out its case against the respondent. I find point (II) in the affirmative.
24. In the result, the appeal fails and is accordingly dismissed.