Jammu & Kashmir High Court – Srinagar Bench
Bashir Ahmad Sheikh Age 65 Years S/O … vs State Of J&K Through Vok Srinagar on 21 August, 2025
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
...
CRA no.19/2014
Reserved on: 08.05.2025
Pronounced on: 21 .08.2025
Bashir Ahmad Sheikh age 65 years S/o Ghulam Mohammad Sheikh R/o
Zadipora Kulgam presently lodged in Central Jail Srinagar
.......Petitioner(s)
Through: Mr I. Sofi, Advocate
Versus
State of J&K through VOK Srinagar
......Respondent(s)
Through: Mr Mohsin S. Qadiri, Sr. AAG
CORAM:
HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGEMENT
1. This criminal appeal is directed against judgement of conviction and
order of sentence dated 20th October 2014, passed by court of
Additional Special Judge, Anticorruption, Kashmir, Srinagar in File
no.65/B-166/B titled as State v. Bashir Ahmad Sheikh, in connection
with case FIR no.25/2006 police station VOK and for setting-aside the
same.
2. I have heard learned counsel for parties. I have gone through Trial Court
record, impugned judgement, and considered the matter.
3. Facts, as is the prosecution story, are necessary to be sketched out. It
had been on 30th June 2006, when one Mudasir Ahmad Wani S/o Mohd
Jabbar Wani R/o Mirhama (complainant) approached Vigilance
Organisation Kashmir (VOK) with a written complaint. He stated in his
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complaint that he was running a commission-based centre at Mirhama
and distributing ration among people of the area on behalf of CA&PD
Department and at the end of the month he was required to deposit the
statement in the office of Supervisor, Mirhama Circle. He visited the
office of Supervisor concerned, Bashir Ahmad Sheikh, appellant
herein, but he refused to accept his statement and made a demand of
Rs.1000/- as bribe, which he arranged. He requested initiation of legal
action against appellant. Upon receipt of complaint, case FIR
no.25/2006 was registered on 30th June 2006 by respondent-VOK.
Investigation was started. A team of officers of VOK was constituted
to lay a trap and services of an official from Social Welfare Department
were requisitioned. Mohammad Ashraf Bhat, Orderly, was deputed,
who was associated with the proceedings as an independent witness. In
the course of investigation, complainant produced Rs.1000/- consisting
of ten currency notes of one hundred rupees denomination each which
he intended to pay as illegal gratification to accused/appellant on his
demand. The currency notes produced by complainant taken and treated
with phenolphthalein power and returned to the complainant with an
advice to pay the same to accused on his demand.
During pre-trap proceedings demonstration was conducted and
the solution so obtained was preserved. The relevant demonstration
memo was prepared in presence of witnesses who signed it thereby
authenticating its correctness. Thereafter Constable Abdul Rashid who
had treated the currency notes with phenolphthalein power and
conducted pre-trap demonstration was disassociated from the trap team.
The trap team accompanied by complainant, Mudasir Ahmad Wani,
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and an independent witness, Mohammad Ashraf Bhat, proceeded to the
spot, i.e., office of Supervisor, CAPD, Mirhama Circle, Kulgam, where
the bribe was to be paid to accused/appellant. The complainant and
independent witness went inside the office building and approached
appellant. The complainant produced monthly statement and appellant
accepted it. According to prosecution, accused/appellant demand and
accepted Rs.1000/- as illegal gratification and kept it on the table and
put a paper sheet over it. The independent witness, Mohammad Ashraf
Bhat, heard conversation of complainant and accused/appellant and
also witnessed transaction of bribe between them and a pre-arranged
signal was flashed by independent witness to other members of trap
team who immediately rushed to the spot and tainted amount of
Rs.1000/- was recovered from table exclusively in use of accused in
presence of trap-team. Handwash of accused/appellant taken in sodium
carbonate solution tested positive and solution so obtained was sealed
and seized.
During investigation, site plan of scene of occurrence was
prepared. Statements of witnesses conversant with facts of the case
were recorded under Section 161 Cr.P.C. It came to limelight during
investigation that dealership for ration sale centre, Mirhama Circle, on
commission basis was given to complainant in terms of Order no.1067
DCA&PDK of 2005 dated 16th June 2005 by Assistant Director
(Planning) and monthly sale statement submitted by complainant was
also seized as documentary evidence in the course of investigation and
established that there was a definite occasion for accused/appellant to
demand and accept illegal gratification of Rs.1000/- from complainant
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which he demanded and accepted and was recovered from his
possession in the course of trap laid on 30th June 2006. According to
prosecution, accused/appellant by acting in aforesaid manner and
abusing his official position committed offences punishable under
Section 5(1)(d) read with Section 5(2) of J&K P.C. Act, 2006, and
Section 161 RPC. Investigation culminated in presentation of charge-
sheet against appellant for which necessary sanction was accorded vide
Order no.89-GAD(Vig) of 2006 dated 15th December 2006.
4. The Trial Court vide order dated 25th April 2007 framed charge against
accused/appellant, to which he pleaded not guilty, thus, prosecution
was directed to adduce evidence in support of its case. Prosecution
adduced twelve witnesses. The resume of the statement of witnesses
produced by prosecution is given as under:
(a) PW-1, Mudasir Ahmad Wani, who is also complainant, in his
statement recorded by Trial Court on 23rd July 2007 stated that when
he went to the office of CA&PD to submit monthly statement,
accused refused to accept his statement and demanded a bribe of
Rs.1000/-. He, however, refused to pay bribe. Then he approached
VOK with a complaint. He admitted contents of seizure memo. He
admitted prosecution story. He admits seizure of money from
accused. According to witness, the handwash was conducted.
In cross-examination witness has stated that complaint has been
scribed by him and was written by him at his home. The witness
upon being asked to read contents of EXPW-1, read the same,
wherein it has been mentioned that at the end of every month
commission @ 10% was to be given along with the statement as
bribe and that the accused used to demand bribe from him @ 10%.
The witness has stated that prior to the said date he had been
depositing the statement with the accused at the end of respective
months but at that time the accused neither demanded bribe from
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him nor he made any such payment. The witness has stated that he
could not recollect as to on how many occasions he deposited the
monthly statement with the accused and that he had been in the said
business for last one year and thereafter stated that he presented the
statement before accused on a couple of occasions. It has been
however stated by the witness that since the statement used to be
deposited on the 30th of every month, as such he had gone to the
office of the accused on 30th June 2006. It has further been stated by
him that he could not recollect as to whether search of the members
of the trap team had been conducted or not, nor as to whether the
hands of any other person besides him and the independent witness
were washed in the office of the VOK and he could not recollect
who treated the currency notes with phenolphthalein powder. It has
been stated that when the accused was trapped at that time ten to
twenty persons were present and the post trap proceedings took
place in their presence, but their names could not be recollected by
him. At the time VOK officials entered into the room upon receiving
the pre-fixed signal, the bribe amount was in the hand of the accused
while his hand was upon the table. He has stated that it is a fact that
the solution in the bottle is of light pink colour as compared to the
solution in the bottle. It has been stated by the witness that he could
not recollect as to whether he saw that person giving the signal upon
which the other members of the trap team entered into the office
room of the accused and it would be wrong to state that when bribe
amount was recovered it had been kept underneath a sheet of paper
while in fact the bribe amount was in the hand of the accused which
fell from his hand upon the table. The witness has stated that his
statement under Section 161 Cr. P.C. has been recorded by the VOK
officials. The witness has further stated that as reflected in his
statement under section 161 Cr.P.C. that the accused held the money
in his hand and told him that if he wanted, he could keep it but
instead of returning the money to him placed it upon the table and
kept a sheet of paper over it, is not correct as he had never made
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such a statement. The time when they left the office of the accused
after completion of the proceedings could not be recollected by him.
(b) PW-2 Mohd Ashraf Bhat (independent witness, the then Orderly,
Directorate of Social Welfare Department), recorded by the court on
02.04.2009, in his statement stated that on 30th June 2006 he was
posted in the directorate of Social Welfare as an Orderly and was
directed by his higher officers to attend office of VOK and
accordingly he went to the office of the VOK where he met an
Inspector with whom a boy was sitting and he was told that the boy
had filed a complaint in connection with which they had to go
somewhere. The complainant produced Rs.1000/- before Inspector
and Inspector handed over the amount to another person Abdul
Rashid who treated the currency notes with powder and handed over
the said notes which comprised of ten notes of one hundred rupee
denomination each to the Inspector and the relevant memos were
prepared. Thereafter, a pre-trap demonstration was conducted and
pre-trap solution so obtained was sealed. The witness has admitted
the contents of the seizure memo and identified his signature upon
it. Also, the contents of Fardi Hawalgi have been admitted by
witness to be true and correct and identified his signature upon it.
Also, the contents of Fardi-Hawalgi have been admitted by witness
to be true and correct and identified his signature upon it. He has
identified the currency notes to be the same as had been produced
by the fu complainant in the office of VOK. The witness has
admitted the contents of pre-trap demonstration memo as true and
correct and identified his signature and also identified the bottle
containing the solution. The witness has stated that thereafter they
left for spot and complainant as also officials of VOK accompanied
him. He had no knowledge as to where they had to go and upon
reaching Mirhama Kulgam, they were told to come out of the
vehicle and that he was directed to accompany complainant. The
complainant went inside the office of Food and Supplies Mirhama
and he accompanied the complainant and they entered into the office
room of the accused/Supervisor where many people were sitting and
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the accused was also inside the room. The witness has stated that he
got seated upon one of the chairs and the complainant was also there.
Thereafter, the complainant produced some statements before the
accused, Bashir Ahmad, who marked the statement and told him to
hand them over to some Clerk and after the statement came back
from the Clerk, the complainant handed over Rs.1000/- to the
accused. The accused asked the complainant reason for payment of
money upon which the complainant told him to keep the money but
the accused refused to take the same. Thereafter, accused kept it on
the table and accused was holding a paper in his hand which he was
reading and said paper was placed by accused upon bribe amount.
The witness has stated that there after he gave a signal towards the
other members of the team who were waiting outside and they
immediately entered into the room and held the accused. The
accused was asked about the bribe amount who told them that the
money was lying upon the table. Thereafter, the seizure memo
prepared. The personal search of the accused was conducted.
In cross-examination, witness has stated that the trap team was
headed by an Inspector who effected the arrest of the accused. The
said officer did not show on spot any order by virtue of which he
had been authorized to arrest the accused nor has any such order
been shown to him in the court. The witness has stated that prior to
being associated as a member of the trap team in the instant case, he
has participated in like matters and has been associated as an
independent witness a number of times. The witness has stated that
on account of his experience he could state that the colour of the
hand wash of the complainant is of dark pink colour, whereas the
colour of the hand wash of the accused is of lighter hue and it is due
to slips affixed upon the bottle that he could identify the solution as
hand wash of the complainant. The witness has stated that in his
examination-in-chief he could identify the bottles since Prosecuting
Officer told him as to which bottle pertained to demonstration No.1
and which bottle pertained to demonstration No.2. He has stated that
he could not himself read out as to what was written upon the slips
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affixed upon the bottles containing the solution. The witness has
however stated that three or four officials of the VOK besides the
complainant and he himself comprised the trap party. It has been
stated by him that it is a fact that when the complainant paid the
money to accused, the accused refused to accept the same resulting
in some tussle between the duo and the complainant was holding the
money in his hands and the accused was trying to ward off the hands
of the complainant away from him. He has stated that he could not
recollect as to whether the paper which was kept on the currency
notes by the accused seized or not. The seal used upon the bottles
during the proceedings was handed over to him. In a query raised by
the court, the witness has stated that during the pre-trap
demonstration solution obtained was sealed in a bottle, but no slip
was affixed upon it which would bear his signature and had the
Investigating Officer written pre-trap solution upon the bottle for
identification purposes and obtained his signature upon it, in that
eventuality, he would have identified the bottle and in like manner
during post-trap demonstration I/O did not affix any slip upon the
bottle. In re-examination, the witness has stated that he has no
knowledge as to what conversation took-place between the accused
and the complainant when the money was being handed over by the
complainant to the accused and it could also be inferred that the
amount might have appeared to the accused to be meager for
acceptance. The witness has stated that he however did not hear
anything being spoken by the accused, whereby he would have said
that the amount was meagre.
(c) PW-3 Firdous Ahmad Khan (the then Inspector VOK), in his
deposition on 7th of June, 2011 stated that he was posted in the VOK
on 30.06.2006 and on the said date the complainant filed an
application before SSP VOK (ABP) Wing; that he was running a
Fair Price Shop and at the end of every month a statement was
required to be submitted in the office of Supervisor CA&Pb Circle
Mirhama, Kulgam after which ration for the coming month was
issued by the department for sale, but the Supervisor concerned had
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demanded an amount of Rs.1,000/- from him and that he wanted
initiation of legal action against the said Supervisor. Upon this, an
FIR was registered and trap-team constituted and the investigation
was entrusted to Inspector Qazi Mehmood and the witness has stated
that besides him other officials of the VOK were included in the
team other than an independent witness Mohd Ashraf Bhat, who was
an employee of Social Welfare Department. The complainant
produced an amount of Rs.1000/- which currency notes were treated
with phenolphalein power by inspector Abdul Rashid and the
currency notes were seized and thereafter returned to the
complainant and Fardi-Zabti was prepared. The witness has
admitted the contents of the same as true and correct and also
identified his signature upon it. Also the currency notes marked as
Mark-i/B to Mark-1/K have been identified by him. The contents of
the Fardi-Hawalgi EXPW1/2 have been admitted by the witness to
be true and correct and has identified his signature thereupon. Pre-
trap demonstration was conducted and the pre-trap solution so
obtained was sealed in a bottle. The said bottle upon being seen has
been identified by the witness. The witness admitted the contents of
pre-trap demonstration memo and identified his signature upon it. It
has been stated that thereafter the trap team proceeded towards spot
and the vehicle was stopped at some distance from the office of
CA&PD and the complainant accompanied by the independent
witness were sent to the office of the Supervisor concerned and the
complainant was directed by the I/O to pay the bribe amount to the
accused upon his demand, which amount had been handed over to
him in the office of VOK. While the complainant and the
independent witness entered into the office of Supervisor, the other
members of the trap team remained outside and after sometime the
independent witness came near the door of the office room and gave
a signal towards other members of the trap team and immediately
the members of the trap team entered into the office room of the
accused where the complainant signaled towards the accused Bashir
Ahmad Sheikh who was directed by Ct. Zamir Ahmad to raise his
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hands and held him by his wrists. The I/O questioned the accused
Supervisor as regards the bribe amount who by gestures said that the
money was lying on the table underneath a paper which was seized
by the I.O. on spot. The independent witness tallied the numbers of
seized currency notes and found them to be the same as had been
produced by the complainant in the office of VOK and the grain bag
statement which had been produced by complainant before
Supervisor Bashir Ahamd Sheikh was seized from another Clerk,
Irshad Ahmad Malik, who was the Depot Assistant. The contents of
EXPW-1/4, EXPW-1/7, EXPW-1/5, EXPW-1/6 & Ext.P4 have
been admitted by the witness as true and correct and identified his
signatures upon the said memos. The witness has also identified
monthly grain bag statement pertaining to the month of June 2006.
In cross-examination, the witness has stated that he had
previously been associated as a member of trap team some two to
four times and in the instant case when he took part in the
proceedings as a member of the trap team, he had full knowledge of
the measures to be adopted. The witness has stated that his statement
U/S 161 Cr.P.C. was recorded on 30th of June, 2006. The witness
has further stated that in his statement U/S 161 Cr.P.C. it has been
stated by him that upon the acceptance of the money by the alleged
accused, the independent witness Mohd Ashraf Bhat gave a pre-
fixed signal towards the other members of the team upon which all
other members of the team, one after the other entered into the office
room of the Supervisor concerned and upon instance of
complainant, the accused was held by his wrists and bribe amount
of Rs. 1000/- was recovered from the accused by the I.O. and the
relevant memo prepared and the recovered amount was found to be
the some as had been handed over to the complainant in the office
of VOK. A demonstration was conducted by Ct. Zamir Ahmad. It
has been stated by the witness that he deposed before the court, that
upon being questioned by the I/O as regards the bribe amount, the
accused pointed towards the table implying that the tainted amount
was upon the some underneath a sheet of paper, but the said fact has
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not been stated by him in his statement, recorded U/S 161 Cr. P. C.
It has been stated by the witness that when his statement U/S 161
Cr.P.C was recorded before IO, he did not state before him that it
was upon the questioning of the accused and upon his instance that
the bribe amount was recovered from the table underneath a sheet
of paper. He has stated that eth statement as deposed by him before
the court was correct. It has been stated that the bribe amount was
recovered from the table at the instance of the accused and seized
but the paper which was covering the currency notes was not seized.
However, the IO did not prepare Fardi-Inkishaf (Disclosure-Memo).
The witness has stated that in the recovery memo, it has not been
mentioned therein that the bribe amount was recovered and seized
upon the disclosure of the accused and when he signed the said
memo, he did not tell IO that there was no mention of disclosure of
accused therein. The witness has stated that disclosure memo was
not prepared, as occurrence and recovery of the trap amount took
place within a short duration and the accused was also present on
spot and had not gone anywhere. Further stated, that it was a fact
that the accused neither demanded the bribe in his presence from the
complainant nor was the same accepted by the accused in his
presence.
(d) PW-4 Showket Ahmad Pandit, Constable VOK (ABP) Wing),
whose statement was recorded on 9th February, 2009, stated that on
30th June, 2006 he was posted in the VOK in ABP Wing as a
Constable and on the said date a trap team was constituted and he
was also included as a member in the said team and Inspector Qazi
Mehmood was entrusted with the investigation of the case and an
independent witness was also associated with the trap proceedings.
It has been stated that the complainant produced Rs. 1000/- before
the I/O which amount was seized and the said seizure memo EXPW-
1/1 has been admitted by the witness to bear true contents and has
identified his signature upon it. The said notes were treated with
phenolphthalein powder by Inspector Abdul Rashid and handed
back to the complainant and a handing over memo prepared,
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contents of the same have been admitted by the witness to be true
and correct. Pre-trap demonstration was conducted and solution so
obtained was sealed in a bottle and seized pre-trap demonstration
memo was prepared and the same was admitted by the witness to
bear true contents identifying his signature upon it as also identified
the bottle containing the pre-trap solution. The witness has stated
that thereafter they left for Kulgam and went to the office of the
Supervisor CA&PD and the complainant accompanied by the
independent witness entered into the office room of the accused
while other members of the trap team remained outside and after
some time the independent witness came out and gave a pre-fixed
signal towards the other members of the team, who immediately
entered into the room and held the accused by his wrists. The bribe
amount was not recovered from the pockets of the accused, but from
the table and seizure memo with regard to the recovered currency
notes was prepared. Thereafter, the post-trap demonstration was
conducted and upon the hand wash of the accused the colour of the
solution slightly changed to red and the said solution was sealed in
a bottle and seized. The contents of the post trap demonstration
memo have been admitted by the witness to be true and correct,
identifying his signature upon the same. Personal search of the
accused was conducted and a memo prepared, contents whereof
have been admitted by the witness to be true and correct and
identified his signature upon it. The witness has stated that the
monthly grain bag statement was seized from the office of
Supervisor and a seizure memo EXPW-1/7 prepare contents of the
same have been admitted by the witness to be true and correct
identifying his signature upon it.
In cross-examination the witness has stated that phenolphthalein
powder was applied upon the currency notes by Ct. Abdul Iashid
bar, and thereafter the complainant counted the notes and kept them
in his pocket and accordingly a pre-trap hand wash of the
complainant was conducted. He has stated that it is upon the basis
of the seals affixed upon the bottles containing the pre-trap and post
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trap solutions that he had been able to identify them as they were
affixed upon them in his presence, but as to who affixed the seals
upon the bottles could not be recollected by him. The witness has
stated that at the time when the seals were affixed, he did not put his
signature or any mark of identification upon them, nor was any such
mark put upon them by the independent witness in his presence. The
seal upon the pre-trap solution was affixed upon the bottle by Ct.
Abdul Rashid, while the seal upon the bottle containing the post-
trap solution was affixed by Ct. Zamir Ahmad which seal was in the
form of a key. The witness has stated that the bottle contains a red-
coloured solution, while the bottle is of a lighter hue. The witness
has stated that the accused neither demanded bribe in his presence
nor accepted the some in front of him. The kit containing sodium
carbonate etc. was being held by Ct. Zamir Ahmad. Upon receiving
pre-fixed signal, it was the IO who first entered into the office room
of the accused and independent witness also returned back into the
room after the signal was flashed, along with other members of the
team. The witness has stated that when he entered into the room Ct.
Zamir Ahmad, I/O and some five to eight officials of the department
concerned were in the room and the witness has stated that when he
entered he saw the accused had raised his hands and Ct. Zamir
Ahmad was holding the hands of the accused and thereafter he also
held the hands of the accused and saw the tainted amount upon the
table and after seizure of the bribe amount, the personal search of
the accused was conducted and it is not a fact that in the first instance
search of the accused was conducted and when the bribe amount was
not recovered from him, thereafter the money was recovered from
the table. The personal search of the accused was conducted by the
I/O and Ct. Zamir Ahmad and the complainant was also present
there. Some five to eight persons were already inside the office who
also witnessed the proceedings. The members of the team remained
inside the office room of the accused for around one and a half hour
and the persons who were present therein were witnessing the entire
proceedings. The bribe amount was lying upon the table and some
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files were also lying upon the table. The witness has stated that he
did not see any file lying on the tainted amount nor anything upon it
and when he entered into the room, complainant was standing near
the table and he could not recollect as to on which side of the table
the amount was lying. The table was in front of the accused and on
the right and left side people were sitting.
(e) PW-5 Abdul Rashid, SGCt. VOK (ABP Wing), in his statement
recorded on 10th of June, 2010 stated that on 30.06.2006 he was
posted in VOK as a Constable in the AP Wing and on the said date
the SSP VOK constituted a trap team in connection with the case
FIR No. 25/06 wherein, he was inducted as a member and Inspector
Qazi Mehmood was entrusted investigation of the case and the
services of an independent witness Mohd Ashraf Bhat had also been
obtained. The witness has stated that in the office of SSP, the
complainant was also present whose name later came to be known
as Mudasir Ahmad Wani. The complainant produced ten currency
notes of one hundred rupee denomination each before the I.O. who
prepared a seizure-memo and recorded the numbers of the currency
notes therein. The said seizure memo EXPW-1/1 has been admitted
by the witness to bear true contents and the witness has also
identified his signature upon it. The witness has stated that as per
the instructions of the I.O., sprinkled phenolphthalein powder upon
currency notes and handed over the currency notes to the
complainant with the direction to pay the money to the accused upon
his demand and Fardi-Hawalgi was prepared by the IO in this
regard. The contents of said memo have been admitted by the
witness to be correct and identified his signature upon it. A pre-trap
demonstration was conducted and the solution was sealed in a bottle.
The pre-trap demonstration memo EXPW-1/3 has been admitted by
the witness to bear true contents and has also identified his signature
upon it and the bottle containing the pre-trap solution marked as
Mark-1/E has also been identified by him. The witness has identified
the currency notes. He has stated that thereafter the team left for spot
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and that he did not accompany them. Further, that he got his
statement recorded before the IO.
In cross-examination, witness has stated that documents upon
which he identified his signature were prepared by Inspector Qazi
Mehmood. The witness has stated in his statement u/s 161 Cr.P.C
he had mentioned that the IO directed him to wash his hands with
soap and thereafter he prepared the solution. The witness has stated
that his statement under section 161 Cr. P.C. was recorded by IO,
Inspector Qazi Mehmood. It has been stated that in his statement
under section 161 Cr.P.C. it has not been reflected that he washed
his hands with soap prior to preparing the solution. The witness has
stated that trap-team was constituted by the SSP concerned.
(f) PW-6 Zamir Ahmad Wagay, SGCt. VOK, whose statement was
recorded on 22.11.2011, deposed that on 30th June, 2006 he was
posted in VOK when a trap team was constituted which included
Inspector Firdous Ahmad Khan, Inspector Qazi Mehmood, Ct.
Abdul Rashid, Ct. Showkat Ahmad and the independent witness
Mohd Ashraf who was an employee of the Social Welfare
Department for the purpose of laying a trap in the instant case. The
witness has stated that all the members assembled in the office of
the inspector, Qazi Mehmood and one more person was present
there who was not known to him and that Inspector Qazi Mehmood
told him that some employee was demanding a bribe from him. The
witness has stated that they proceeded towards Kulgam and reached
Mirhama village and the independent witness was directed to keep
a close eye and to over-hear the conversation as might take place on
spot and to give a pre-fixed signal upon the acceptance of the bribe
money by the accused. The complainant entered inside the office
room of the accused while the independent witness remained near
the door of the said room and as soon as the independent witness
gave a prefixed signal, the witness has stated that he immediately
entered inside the room and caught hold of the accused by his wrists
and thereafter other members of the team entered inside the room
and searched for the tainted amount which was found lying upon the
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table in front of the accused and on the said bribe amount a sheet of
paper was lying. The personal search of accused was also conducted.
The contents of recovery memo have been admitted by the witness
to be true and correct. The currency notes have been identified by
the witness to be the same as had been seized from the table of the
accused and were lying underneath a sheet of paper and had been
seized on spot. Thereafter, the post trap demonstration was
conducted in the office room of the accused and the hand wash of
the accused tested positive. The said solution was sealed in a bottle.
The bottle containing the solution has been identified by the witness.
The witness has stated that it is a fact that impression of the seal used
is taken upon the demonstration memo and if it is given on
Superdnama, its impression is also recorded on the said Superdnama
but in the instant case the impression of the seal which was used was
neither taken upon EXPW-1/5 nor on Ext.P4. The key used for the
purpose was of medium size, but could not recollect as to what was
written upon it. The witness has stated that he had no knowledge as
to what transpired inside the office room of the accused prior to
receiving prefixed signal and that the accused neither demanded
bribe from the complainant nor accepted the some in his presence.
The paper which was lying upon the currency notes on the table of
the accused was not seized, He has stated that he could not say as to
why he had not been kept a witness to the pre-trap proceedings. It
has been stated that it is a fact that the paper under which the tainted
amount was recovered would have also borne traces of
phenolphthalein powder and also finger prints of the person who
kept it there.
(g) PW-7 Irshad Ahmad Malik (the then Depot Assistant CA&PD
Mirhama), in his statement, deposed that on 30.06.2006, he was
posted in the office of Supervisor CA&PD Mirhama as Depot
Assistant and the dealers were required to deposit their monthly
grain bag statements in the said office at the end of every month
which reflected the quantity of rice, sugar etc. distributed during the
month as also the balance left over and in case the said statement
Page 16
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was not deposited their license would get suspended. He has stated
that when the occurrence took place the accused was functioning as
the Supervisor and the VOK officials entered into the office of the
Supervisor. The witness has stated that when he entered the room at
that time accused/Store-keeper, Mudasir Ahmad (complainant),
Nazir Ahmad Gartie (Store-keeper) Mirhama, Chowkidar Mohd
Shaban and Abdul Rehman Sheikh (Store-keeper) as also Ghulam
Nabi, were present. Mudasir Ahmad was running a Fair Price Shop
in Mirhama and was required to submit his monthly grain bag
statement before accused. The witness has stated that he saw one of
VOK officials entering the room who was told by Mudasir Ahmad
that accused was demanding money from him and signaled towards
accused and at that time an amount of Rs. 1000/- was lying upon the
table. That he heard the accused telling Mudasir Ahmad to pick up
the money, but that was so when VOK officials entered into the
room. Thereafter, VOK officials picked the money from the table
and seized the amount in his presence and no other proceeding took
place. However, VOK officials brought water in a glass and mixed
some powder in it and some two to three persons including him,
Ghulam Nabi and an official of the VOK were made to wash their
hands, but the colour of the solution did not change. Thereafter, the
handwash of accused in the same solution was conducted upon
which colour of the solution changed into pink. The witness has
also identified the bottle containing the solution marked as Mark-
1/L. Further stated that the grain bag statement was seized on spot
and seizure memo prepared.
In cross-examination, the witness has stated that as a Clerk in the
said office he used to check the grain bag statement and the said
statements used to remain in his custody. When grain bag statements
were given to him, he used to check the some and after being
checked by him the statements were sent to the office of the
Assistant Director and no receipt was issued upon receiving the
grain bag statement. The accused was functioning as Supervisor and
it is a fact that when he used to check grain bag statements, thereafter
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he used to present it before the Supervisor and the accused in his
capacity as a Supervisor signed the same and forwarded it to the
Assistant Director CA&PFD. The witness has stated that the grain
bag statement first used to come before Supervisor who after
marking it, sent it to him for being checked. It has been stated by the
witness that whatever proceedings took place in the room before
him, VOK officials prepared documents thereto and he put his
signatures upon those documents and other than that no other
proceeding took place. The witness has denied contents of
demonstration memo. He has stated that VOK officials recorded his
statement on spot. The witness has stated that in his statement under
section 161 Cr.P.C a mention has been made about handwash of
Mohd Ashraf Bhat and accused, but no mention has been made
about his hand wash and at the time when handwash was conducted,
Chowkidar Mohd Ramzan Bhat and two other persons were also
present in the room. In the first instance, Mudasir Ahmad and
another civilian entered into the office room of the accused and after
that he entered into the room of the accused and after that he entered
into the room and thereafter the VOK officials entered into the room
of the accused and after that he entered into the room and thereafter
the VOK officials entered into the room, while Chowkidar Mohd
Shaban etc. were already present inside the room. It has been stated
by the witness that when he entered into the room, Mudasir Ahmad
Wani had already entered therein and as to what events took place
before he entered there, was not known to him and as such he had
no knowledge as to when Mudasir Ahamd Wani produced the grain
bag statement before the Supervisor.
(h) PW-8 Reyaz Ahmad Wani (the then Assistant Director CA&PD
Anantnag, in his statement recorded on 21.04.2010 has stated that
he was posted as the Assistant Director CA&PED Anantnag on 15th
of July, 2006 and that the accused is known to him since he was
posted as the Supervisor Mirhama Kulgam. The contents of Ext.P8
have been admitted by the witness to be true and correct, which
communication bears No.1808 dated 15.07.2006. The ration tickets
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pertaining AAY/APL and are given to the concerned Supervisor for
distribution among the people. The accused was provided
approximately 3500/: ration tickets in the month of June 2006. The
contents of Ext.P8/1 have been admitted by the witness to be true
and correct and identified his signature upon it. The witness has
identified the photocopy of the order dated 24.02.2006 marked as
Mark-‘R’ and admitted that same has been attested by him and has
identified his signature Ext.P8/2 upon it and the accused as per the
said order is figuring at S. No.4. By virtue of said order the accused
has been posted at Mirhama. The witness has identified the photostat
copy of the license of Mudasir Ahmad Wani and same stands
attested by him.
In cross-examination the witness has stated that he did not
himself perused the record. He has stated that in his statement
recorded by the IO the number and date of the communication
Ext.P8 was not recorded, however, the details were given though not
recorded fully and as mentioned in the statement that the accused
had deposited Rs, 14,485/- on 24.07.2006, the amount stood
collected on account of sale of ration tickets and had been deposited
against some head. More-over when ration tickets are issued receipts
are obtained by the Supervisor from various Store-keepers and until
the Store-keeper obtains the price of the ration tickets from the
people and hands it over to the Supervisor, till then the Supervisor
cannot deposit the money. Further, that he cannot state whether as
mentioned in the communication Ext.P8 dated 15.07.2006 that an
amount of Rs.33,000/- was outstanding against the accused, had in
fact been received by the accused from the concerned Storekeepers
and had no knowledge about the same at the time the communication
was made.
In re-examination, witness has stated that it was after issuance of
the letter accused deposited Rs.14,400/- in Treasury on 24.07.2006.
Further he stated that he could not say anything about the record by
virtue of which he had written in the letter Ext.P8 that the accused
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had an amount of Rs. 33,000/- outstanding, nor about the record
whereby the accused had deposited Rs.14,400.
(i) PW-9 Shabir Ahmad Yeswi (the Scientific Officer, FSL Srinagar),
in his statement recorded on 12th April, 2012 has stated that on 31st
of July, 2006 he received two sealed bottles in his office for
chemical examination from the office of VOK and that he examined
the some upon which he formulated his opinion. The expert opinion
given by him was sent to the VOK. The said report has been stated
by the witness to bear true contents and he has identified his
signature upon it. The witness has stated that after conducting
examination of chemical in solution, the solution as again resealed
in the bottles and bottles, which bottles have been identified by
witness.
In cross-examination, witness has stated that due to number
affixed upon the bottles i.e. 485 dated 04.07.2006 in the FSL and by
virtue of the seal affixed by the FSL upon them, he could identify
the bottles in court. The letter Ext.P9 makes a mention of a letter of
the SSP VOK dated 04.07.2006, but another letter from the office of
Executive Magistrate was received, mention of which has not been
mode in Ext.P9. The witness has stated that though para-No.1 of
Ext.P9 mentions three intact seals being affixed, but the impression
of the said seals was not placed upon Ext.P9. The witness has stated
that the number recorded upon the bottles i.e. 485 has not been
mentioned in the report and the impression of the seal which was
used at the time of resealing of bottles has neither been taken upon
the report Ext.P9 nor upon the letter marked as Mark-SA. The
witness has stated that it is a fact that at the time of conducting of
chemical examination when the bottles were resealed colour of the
solution as existed on date was not mentioned in the report, nor in
the letter marked as Mark-SA. The witness has stated that he could
not recollect after how long the chemical examination was
conducted in the FSL when the bottles were received but the
examination was conducted between 04.07.2006 to 31.07.2006. For
conducting the chemical examination samples were obtained from
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the bottles and remaining solution in the bottles were resealed but
exhibits were not placed upon the bottles. However, record of the
same lies in their office in Legal Section. The witness has stated that
he had forgotten to put the exhibits upon the bottles and that in the
report it has not been mentioned that upon the solution being
examined sodium carbonate was detected therein, but that
phenolphthalein powder was found in the said solution.
(j) PW-10 Ghulam Hassan Bhat (the then SSP VOK), recorded on 22nd
January 2012 has stated that on 30th June 2006, he was also
functioning as SHO P/S VOK and FIR in the instant case was
registered by him and the investigation of the case was handed over
to Inspector Qazi Mehmood. The witness has identified his
endorsement upon the application of the complainant bearing his
signature. The witness has stated that the challan comprising of three
leaves was compiled after necessary sanction was obtained.
In cross-examination, witness has stated that he had
communicated to the Central Office as regards grant of sanction and
that challan was prepared on the basis of investigation conducted.
(k) PW-11, N.D. Wani (the then SSP VOK) stated that he was posted
as SSP VOK on 30.06.2006 and in connection with the instant FIR
no.25/06, he issued two orders which are on record of the file. He
states that likewise another order dated 3.06.2006 was issued by
him.
In cross-examination, witness has stated that it is a fact that in
the communication exhibited as Ext.P11/4, the colour of solution in
bottles marked as HW-1, HW-2 has not been mentioned. The
authorization by Executive Magistrate mentioned in Ext.P11/4 was
not seen by him in the court. The witness stated that in the letter
exhibited as Ext.P11/1 beneath the number of the letter, the dote
bears over-writing and the said letter was issued before proceeding
on spot and at that time it was not known as to whether the accused
would be trapped or not and it has not been specifically mentioned
in the order that the accused be arrested upon being trapped. The
witness has stated that it is a fact that Ghulam Hassan Bhat was
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functioning as the SHO P/S VOK. The witness has stated that upon
receipt of the written complaint he himself entrusted the
investigation of the case to Inspector Qazi Mehmood. Further that
he saw photocopy of letter of authority issued by Executive
Magistrate to Director FSL.
(l) PW-12, Qazi Syed Mehmood, IO, the then Inspector, VOK, has
stated that on 30.06.2006, the investigation of the case FIR
no.25/2006 P/S VOK was entrusted to him. During investigation he
questioned the complainant in light of his complaint, upon which
FIR had been registered, which revealed that the complainant
Mudasir Ahmad Wani had been running a commission-based Centre
on behalf of the CA&PD at Mirhama, Kulgam and at the end of the
month a monthly statement used to be submitted to the Supervisor
concerned and for receipt of which the Supervisor Bashir Ahmad
Sheikh had demanded an amount of Rs. 1000/- from him, upon
which he filed a complaint with the P/S VOK and sought legal action
against the accused. A trap team was constituted by the SSP (ABP)
and the services of an independent witness were requisitioned and
associated with the trap team as such. The complainant produced an
amount of Rs. 1000/- which was seized and a seizure-memo EXPW-
1/1 prepared, contents of which have been admitted by the witness
as true and correct, as also identified his signature upon it. The
witness has also admitted the contents of the handing over memo
EXPW-1/2 and the pre-trap demonstration memo EXPW-1/3 as true
and correct and identified his signatures upon said memos. The
complainant was directed to hand over the notes to the accused only
upon his demand. Thereafter the members of the team except Ct.
Abdul Rashid accompanied by the complainant proceeded towards
the office of the Supervisor CA&PD Circle Mirhama, Kulgam and
upon reaching there the complainant accompanied by the
independent witness were sent to the said office of the accused
Supervisor and the other members of the team walked at some
distance and Ct. Zamir Ahmad was placed nearby the office of the
Supervisor concerned and was nominated as the shadow witness.
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The complainant accompanied by the independent witness entered
into the office room of the Supervisor concerned and after sometime
the independent. witness gave a pre-fixed signal towards the other
members of the team while he came out of the room of accused and
other members of the team immediately entered into the office room
of the Supervisor CA&PD Circle Mirhama, Kulgqm where f at the
instance of the independent witness and the complainant, the
accused Bashir Ahmad was directed to raise his hands. A
demonstration was conducted and in the solution of water and
sodium carbonate handwash of the independent witness was
conducted in the first instance upon which the colour of the solution
remained unchanged and thereafter in the some solution hand wash
of the accused was conducted which tested positive and the post-
trap demonstration memo EXPW-1/5 prepared, contents whereof
have been admitted by the witness as true and correct and identified
his signature upon it. The witness has stated that upon the disclosure
of the accused Bashir Ahmad Sheikh the tainted amount of
Rs.1000/- was recovered from his table which was seized on spot
and seizure memo prepared. The witness has admitted the contents
of the recovery memo EXPW-1/4 as true and correct and identified
his signature upon it. Also contents of seizure memo pertaining to
monthly grain bag statement EXPW-1/7 and memo pertaining to the
personal search of the accused EXPW-1/6 have been admitted by
the witness to be true and correct and identified his signatures upon
the said memos. The witness has also identified the contents of the
site plan Ext.P12 to be true and correct and identified his signature
upon it. During investigation, statements of the witness were
recorded and pre-tap and post trap solutions were sent to the FSL,
Srinagar, for chemical examination and report obtained. Also the
service particulars of accused, Bashir Ahmad Sheikh, were
obtained. He states that during investigation it was established that
the accused in his capacity as Supervisor CA&PD Mirhama Circle,
Kulgam demanded an illegal gratification of Rs. 1000/- from the
complainant for receiving his monthly grain bag statement and
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thereby committed the offence u/S 5(2) P.C. Act and Section 161
R.P.C. and accordingly the challan was compiled and submitted to
the higher authorities for obtaining the requisite sanction from the
government and upon receiving the sanction challan has been
produced in court.
In cross-examination, witness has stated that he had been posted
in VOK for quite some time and had full knowledge about the trap
cases and that he fully recollected the events and proceedings which
took place on the day of occurrence. That when the case was
entrusted to him for investigation, he held the rank of an Inspector
and when the investigation of the case was completed by him at that
time also, he held the same rank. He has stated that it is a fact that
an officer of the rank of an Inspector under Section 5 P.C. Act,
cannot effect arrest. The witness has stated that he had been
authorized by N.D. Wani in this regard. It has been stated that in a
trap case neither IO nor any other officer of VOK knows as to
whether the trap would be successful or not. He states that order,
Ext.P11/1 was provided to him by SSP (ABP) before they left for
spot and as per the said order the name of the accused had been
mentioned prior to the proceeding on spot authorizing him to effect
his arrest and when the said order was handed over to him he was
not in know of the fact as to whether Bashir Ahmad Sheikh would
be trapped or not. The witness has stated that in his examination-in-
chief he did not mention that accused after keeping bribe amount on
the table placed a sheet of paper upon it. The said paper underneath
which the accused kept the bribe amount was not seized as it was
not considered necessary. He has stated that when he entered into
room, the bribe amount was not covered by any paper and prior to
him Constable Zamir Ahmad went inside the office room of accused
to whom accused said that the bribe amount was lying on the table
and as per Zamir Ahmad paper had been placed upon the bribe
amount which was removed by Constable Zamior Ahmad. The
witness has stated that the accused did not point towards bribe
amount in his presence and when he entered into the room, the bribe
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amount was seized from the table upon the instance of accused on
the basis of statement of Constable Zamir Ahmad and as the
complainant and independent witness narrated so. The witness upon
being question as to whether at the time of preparing seizure memo,
it was in his knowledge as per investigation that the bribe amount
was being seized from table upon identification of accused, the
witness has replied in affirmative and stated that it was well within
his knowledge that the bribe amount was lying on the table of the
accused which was before one and all present and the accused had
been seen keeping the bribe amount on the table by the complainant
as well as independent witness and as such he did not consider it
necessary to mention it in the seizure memo that tainted amount was
seized upon identification of accused and it has come in the
statements of the witnesses that the accused was fully in know about
the bribe amount being kept on the table. The witness has stated that
he deposed about the recovery of bribe amount at the instance of
accused as same came out as the crux of investigation. The witness
stated that in his presence neither accused accepted money nor made
any such demand nor did he see accused placing bribe amount upon
table and it is a fact that no other trap member besides complainant
and independent witness had witnessed the demand for bribe being
made by accused or its acceptance by him or bribe amount being
kept upon table after its acceptance by accused.
5. After recording statement of prosecution witnesses, accused/ appellant
was explained evidence on record against him in terms of Section 342
Cr.P.C. He maintained that he neither demanded nor accepted any bribe
from complainant. He stated that in fact complainant came to his office
room with his grain bag statement and shook hands with him and placed
the grain bag statement upon his table, which resulted in some scuffle
between him and complainant and in the meantime some officials
entered into his office room and seized the money which had been
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concealed under the grain bag statement which was lying on the table.
He also stated that complainant was running a sale centre of CA&PD
in Mirhama Circle, Kulgam and was indulging in black marketing of
rice etc. and upon his raising objection, complainant lodged a false case
against him in VOK. Accused/ appellant in his defence produced three
witnesses. Trial Court by impugned judgement
6. To challenge impugned conviction and sentence, it is being averred that
respondents have concocted a false and frivolous case against appellant
as regards demand of Rs.1000/- from complainant to accept monthly
statement of distribution of ration among people of the aera. He neither
demanded bribe nor accepted it and in fact on presentation of statement
by complainant he as usual initiated it and returned it to complainant
for onward necessary action at the end of concerned clerk as is evident
from the record. Allegations levelled against appellant by prosecution
and complainant are not based on reality and entire case set up against
him was concocted and manipulation to cause harm to him and spoil
his future. Prosecution is stated to have failed to establish guilt against
appellant that too beyond reasonable doubt. There has been lot of
contradiction on material facts which have not been appreciated by
Trial Court. Independent witness has himself stated that complainant of
his own thrusted bribe amount to appellant which appellant refused to
accept and resisted and threw it back but Trial Court has not appreciated
the said statement of independent.
7. Learned counsel for appellant would contend that the Trial Court has
not appreciated the fact that prosecution has failed to establish at trial
the guilt of accused/appellant inasmuch as there was no question of
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demanding bribe from complainant as it was in fact complainant who
approached office of appellant with his grain bag statement and shook
hands with him and placed his grain bag statement upon the table,
which resulted in some argument between appellant and complainant
and in the meantime officials of VOK entered into room and seized the
money concealed under the grain bag statement and with regard to
which appellant had no knowledge till the same was seized. Learned
counsel for appellant also claims that the tainted currency notes were
taken out by complainant himself out of his own packet and placed
those notes on the table and shook hands with appellant and therefore
appellant came in contact with phenolphthalein powder. According to
learned counsel, prosecution case is full of contradictions. He has
invited attention of this Court to independent prosecution witness-2,
namely, Mohd Ashraf Bhat, who was then Orderly in Directorate of
Social Welfare Department, whose statement was recorded by Trial
Court on 2nd April 2009. During cross examination he stated that the
trap team was headed by an Inspector who effected the arrest of the
accused. The said officer did not show on spot any order by virtue of
which he had been authorized to arrest the accused nor has any such
order been shown to him in the court. The witness has stated that prior
to being associated as a member of the trap team in the instant case, he
has participated in like matters and has been associated as an
independent witness a number of times. The witness has stated that on
account of his experience he could state that the colour of the hand wash
of the complainant is of dark pink colour, whereas the colour of the
hand wash of the accused is of lighter hue and it is due to slips affixed
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upon the bottle that he could identify the solution as hand wash of the
complainant. The witness has stated that in his examination-in-chief he
could identify the bottles since Prosecuting Officer told him as to which
bottle pertained to demonstration No.1 and which bottle pertained to
demonstration No.2. He has stated that he could not himself read out as
to what was written upon the slips affixed upon the bottles containing
the solution. The witness has however stated that three or four officials
of the VOK besides the complainant and he himself comprised the trap
party. It has been stated by him that it is a fact that when the
complainant paid the money to accused, the accused refused to accept
the same resulting in some tussle between the duo and the complainant
was holding the money in his hands and the accused was trying to ward
off the hands of the complainant away from him. According to learned
counsel for appellant, there is absence of demand and acceptance of
bribe on the part of accused/appellant.
8. From the statement of independent witness of prosecution, it is vividly
evident that there had been no evidence of both demand and/or
acceptance of bribe by accused/appellant. It is not enough to simply
prove a public official misused their authority; there should be concrete
proof that public official solicited or received something of value in
exchange for an official act. The Prevention of Corruption Act (PC Act)
requires proof that a public servant demanded and accepted the bribe.
9. In the present case from the materials produced before the Trial Court
there is nothing to indicate that a demand or acceptance of bribe by
appellant which would clearly infer that there is no question of any
proof being provided, on that aspect, at the trial. In this context, I have
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to look at the Constitution Bench decision in Neeraj Dutta v. State
(NCT of Delhi) (2012) 4 SCC 731. Paragraph 88 thereof reads as under:
“88. What emerges from the aforesaid discussion is
summarised as under:
88.1. (a) Proof of demand and acceptance of illegal
gratification by a public servant as a fact in issue by the
prosecution is a sine qua non in order to establish the guilt of
the accused public servant under Sections 7 and 13(1)(d)(i)
and (ii) of the Act.
88.2. (b) In order to bring home the guilt of the accused, the
prosecution has to first prove the demand of illegal
gratification and the subsequent acceptance as a matter of
fact. This fact in issue can be proved either by direct evidence
which can be in the nature of oral evidence or documentary
evidence.
88.3. (c) Further, the fact in issue, namely, the proof of
demand and acceptance of illegal gratification can also be
proved by circumstantial evidence in the absence of direct
oral and documentary evidence.
88.4. (d) In order to prove the fact in issue, namely, the
demand and acceptance of illegal gratification by the public
servant, the following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe-giver without
there being any demand from the public servant and the
latter simply accepts the offer and receives the illegal
gratification, it is a case of acceptance as per Section 7
of the Act. In such a case, there need not be a prior
demand by the public servant.
(ii) On the other hand, if the public servant makes a
demand and the bribe-giver accepts the demand and
tenders the demanded gratification which in turn is
received by the public servant, it is a case of
obtainment. In the case of obtainment, the prior
demand for illegal gratification emanates from the
public servant. This is an offence under Sections 13(1)
(d)(i) and (ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by the
bribe-giver and the demand by the public servant
respectively have to be proved by the prosecution as a
fact in issue. In other words, mere acceptance or receipt
of an illegal gratification without anything more would
not make it an offence under Section 7 or Sections
13(1)(d)(i) and (ii), respectively of the Act. Therefore,
under Section 7 of the Act, in order to bring home the
offence, there must be an offer which emanates from
the bribe-giver which is accepted by the public servant
which would make it an offence. Similarly, a prior
demand by the public servant when accepted by the
bribegiver and in turn there is a payment made whichPage 29
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is received by the public servant, would be an offence
of obtainment under Sections 13(1)(d)(i) and (ii) of the
Act.
88.5. (e) The presumption of fact with regard to the demand
and acceptance or obtainment of an illegal gratification may
be made by a court of law by way of an inference only when
the foundational facts have been proved by relevant oral and
documentary evidence and not in the absence thereof. On the
basis of the material on record, the court has the discretion to
raise a presumption of fact while considering whether the fact
of demand has been proved by the prosecution or not. Of
course, a presumption of fact is subject to rebuttal by the
accused and in the absence of rebuttal presumption stands.
88.6. (f) In the event the complainant turns “hostile”, or has
died or is unavailable to let in his evidence during trial,
demand of illegal gratification can be proved by letting in the
evidence of any other witness who can again let in evidence,
either orally or by documentary evidence or the prosecution
can prove the case by circumstantial evidence. The trial does
not abate nor does it result in an order of acquittal of the
accused public servant.
88.7. (g) Insofar as Section 7 of the Act is concerned, on the
proof of the facts in issue, Section 20 mandates the court to
raise a presumption that the illegal gratification was for the
purpose of a motive or reward as mentioned in the said
Section. The said presumption has to be raised by the court as
a legal presumption or a presumption in law. Of course, the
said presumption is also subject to rebuttal. Section 20 does
not apply to Sections 13(1)(d)(i) and (ii) of the Act.
88.8. (h) We clarify that the presumption in law under Section
20 of the Act is distinct from presumption of fact referred to
above in sub-para
88.5 (e), above, as the former is a mandatory presumption
while the latter is discretionary in nature.”
10. The Constitution Bench of the Supreme Court has held that the proof
of demand or an offer and acceptance of illegal gratification by a public
servant is a fact in issue in the criminal proceeding and is a sine qua
non to establish the guilt of accused public servant under PC Act.
Unless proof is offered to the satisfaction of the court that there is a
demand and acceptance of illegal gratification, the presumption would
not arise. The presumption under the Act cannot arise on the mere
allegation of a demand and acceptance of illegal gratification as rightly
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pointed out by appellant. The question of presumption does not arise in
the present case where the Trial Court has merely examined the
complainant and also summoned the witnesses, the officers/officials of
the trap team and investigation team for the purpose of recording their
statements; even the independent witness produced and examined by
prosecution does not corroborate prosecution story.
11. Perusal of impugned judgement reveals that Trial Court has observed
that appellant demanded and accepted the bribe, whereas, as a matter
of fact, independent witness adduced and examined by prosecution has
stated contrary to it. From his statement, it is in unequivocal terms
evident that appellant did neither make any demand nor did he accept
the bribe. It is also evident from the statement of independent
prosecution witness that alleged bribe amount was not recovered from
possession of appellant inasmuch as the amount was lying on the table
as is stated by independent witness of prosecution as well.
12. The Trial Court has ignored the fact from the statement of independent
witness of prosecution that there was no demand or acceptance of bribe
by accused/ appellant inasmuch as the Trial court has misdirected itself
in going through the statement of independent witness of prosecution;
even official witnesses of prosecution have not been able to prove and
establish demand and acceptance of bribe by appellant.
13. In B. Jayaraj v. State of Andhra Pradesh, 2014 (13) SCC 55, it was said
by the Supreme Court that is a settled position in law that demand of
illegal gratification is sine qua non to constitute the offence as
contemplated under Prevention of Corruption Act and mere recovery
of currency notes cannot constitute the offence thereunder unless it is
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proved beyond all reasonable doubt that accused voluntarily accepted
the money knowing it to be a bribe. The proof of demand of illegal
gratification, thus, is the gravamen of the offence under the provision
of P. C. Act and in absence thereof, unmistakably the charge therefor,
would fail.
14. The above position has also been laid down in several judgements of
the Supreme Court. Reference in this regard is made to C.M. Sharma v.
State of A.P. 2010 (15) SCC 1; C. M. Girish Babu v. CBI, 2009 (3)
SCC 779. It is likewise well settled that mere recovery by itself cannot
prove the charge of prosecution against accused. [See: N. Vijaykumar
v. State of Tamil Nadu, AIR 2021 SC 766]. In the aforesaid matters, it
has been reiterated that to prove the charge, it has to be proved beyond
reasonable doubt that the accused voluntarily accepted money knowing
it to be bribe. Absence of proof of demand for illegal gratification and
mere possession or recovery of currency notes is not sufficient to
constitute such offence. In the abovesaid judgments it has also been
held that even the presumption can be drawn only after demand for and
acceptance of illegal gratification is proved. It is also fairly well settled
that initial presumption of innocence in the criminal jurisprudence gets
doubled by acquittal recorded by the trial court.
15. Before recording conviction under the provisions of the Prevention of
Corruption Act, the courts have to take utmost care in scanning the
evidence. Once conviction is recorded under the provisions of
Prevention of Corruption Act, it casts a social stigma on the person in
the society apart from serious consequences on the service rendered.
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16. The Supreme Court, in the case of K. Shanthamma v. State of
Telangana, AIR 2022 SC 1134, has held as follows:
“10. We have given careful consideration to the submissions. We
have perused the depositions of the prosecution witnesses. The
offence under Section 7 of the PC Act relating to public servants
taking bribe requires a demand of illegal gratification and the
acceptance thereof. The proof of demand of bribe by a public
servant and its acceptance by him is sine qua non for establishing
the offence under Section 7 of the PC Act.”
17. In P. Satyanarayana Murthy v. State of A.P., (2015) 10 SCC 152, the
Supreme Court has summarised the well- settled law on the subject in
para 23 which reads thus:
“23. The proof of demand of illegal gratification, thus, is the
gravamen of the offence under Sections 7 and 13 (1)(d)(i) and (ii)
of the Act and in absence thereof, unmistakably the charge
therefor, would fail.
Mere acceptance of any amount allegedly by way of illegal
gratification or recovery thereof, dehors the proof of demand, ipso
facto, would thus not be sufficient to bring home the charge under
these two sections of the Act. As a corollary, failure of the
prosecution to prove the demand for illegal gratification would be
fatal and mere recovery of the amount from the person accused of
the offence under Section 7 or 13 of the Act would not entail his
conviction thereunder.”
18. In A. Subair v. State of Kerala, (2009) 6 SCC 587 , the Supreme Court
while dwelling on the purport of the statutory prescription of Section 7
and 13 (1)(d) of the P.C. Act ruled that the prosecution has to prove the
charge thereunder beyond reasonable doubt like any other criminal
offence and that the accused should be considered to be innocent till it
is established otherwise by proper proof of demand and acceptance of
illegal gratification, which are vital ingredients necessary to be proved
to record a conviction.
19. In State of Kerala and another v. C. P. Rao, (2011) 6 SCC 450 , the
Supreme Court reiterating its earlier dictum, vis-à-vis the same
offences, held that mere recovery by itself, would not prove the charge
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against the accused and in absence of any evidence to prove payment
of bribe or to show that the accused had voluntarily accepted the money
knowing it to be bribe, conviction cannot be sustained.
20. In the present case, independent witness of prosecution did not support
prosecution case insofar as demand by accused is concerned. Even in
his examination in chief deposition, he has stated that complainant
handed over Rs.1000/- to accused but accused asked complainant
reason for payment of money, upon which complainant told him to keep
money but accused refused to take the same. The said independent
witness has also stated that he gave a signal to other members of the
team who were waiting outside and they immediately entered into the
room and held the accused. The accused was asked about bribe amount
who told them that money was lying upon the table. On his cross-
examination, independent witness of prosecution has stated that it is a
fact that when complainant paid money to accused, the accused refused
to accept the same resulting in some tussle between duo and that
complainant was holding money in his hands and accused was trying to
ward-off the hands of complainant away from him.
21. The other witnesses adduced and examined by prosecution are official
witnesses and they had not been present when complainant is alleged
to have tried to give money to accused and they entered the room only
after they were given signal. In such situation, the Trial Court is not
correct to hold that demand allegedly made by accused has been
proved. The only other material available is the recovery of the tainted
currency notes not from the possession of the accused but from the
table. Thus, there is no proof of demand to bring home the offence
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CRA No.19/2014
punishable under the provisions of the P.C. Act. The above also will be
conclusive insofar as the offence under Section 5(1)(d) read with
Section 5(2) of J&K P.C. Act, 2006, is concerned as in absence of any
proof of demand for illegal gratification, the use of corrupt or illegal
means or abuse of position as a public servant to obtain any valuable
thing or pecuniary advantage cannot be held to be established.
22. In any event, it is only on proof of acceptance of illegal gratification
that presumption can be drawn that such gratification was received for
doing or forbearing to do any official act. Proof of acceptance of illegal
gratification can follow only if there is proof of demand. As the same
is lacking in the present case, the primary facts on the basis of which
the legal presumption can be drawn are wholly absent. In view of the
contradictions noticed above in the depositions of key witnesses
examined on behalf of prosecution, I am of the view that the demand
for and acceptance of bribe amount by appellant is not proved beyond
reasonable doubt.
23. Having regard to such evidence on record, the acquittal of accused/
appellant is a possible view, as such, the judgment of the Trial Court is
fit to be set aside.
24. In reiteration of the golden principle which runs through the web of
administration of justice in criminal cases, the Supreme Court in Sujit
Biswas v. State of Assam (2013) 12 SCC 406, has held that suspicion,
however grave, cannot take the place of proof and the prosecution
cannot afford to rest its case in the realm of “may be” true but has to
upgrade it in the domain of “must be” true in order to steer clear of any
possible surmise or conjecture. It was held, that the Court must ensure
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that miscarriage of justice is avoided and if in the facts and
circumstances, two views are plausible, then the benefit of doubt must
be given to the accused.
25. The materials on record when judged on the touch stone of the legal
principles adumbrated hereinabove, leave no manner of doubt that
prosecution, in the instant case, has failed to prove unequivocally,
demand of illegal gratification and, thus, I am constrained to hold that
it would be wholly unsafe to sustain the conviction of the appellant
under Section 5(1)(d) read with Section 5(2) of the J&K Prevention of
Corruption Act, 2006 Svt and Section 161 RPC as well.
26. In the result, appeal succeeds. Impugned judgment and order dated 20th
October 2014, of the court of Additional Special Judge, Anticorruption,
Kashmir, Srinagar is set-aside. Appellant is on bail. His bail bond
stands discharged.
27. Trial record be sent back.
(Vinod Chatterji Koul)
Judge
Srinagar
21.08.2025
Ajaz Ahmad, Secretary
Whether approved for reporting? Yes/No.
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