VINOD KUMAR GARG versus STATE (GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI) on 27 November 2019

SUPREME COURT REPORTS

[2019] 17 S.C.R.

AVINOD KUMAR GARG

v.

STATE (GOVERNMENT OF NATIONALCAPITAL TERRITORY OF DELHI)

(Criminal Appeal No. 1781 of 2009)

B

NOVEMBER 27, 2019

[INDU MALHOTRA AND SANJIV KHANNA, JJ.]

Prevention of Corruption Act, 1988: ss.7 and 13 – Demandand acceptance of illegal gratification – Prosecution case was thatCthe appellant-Inspector, DESU demanded bribe money from PW-2for providing electricity connection to his shed – On PW-2’scomplaint, trap was laid on the fateful day – Currency notes weresubjected to chemical treatement – Raiding party along with PW-2, PW-3 and PW-5 proceeded to the DESU office – When PW-2Dapproached appellant, he took him to a garment shop on hisscooter and went inside the shop where he asked PW-2 to give themoney – PW-2 gave currency notes to appellant in a polythene bagwhich was put in appellant’s pant pocket as directed by theappellant – PW-3 (panch witness) present in the immediate vicinitygave signal to the raiding party – Inspector (PW-5) in the presenceEof PW-2 and PW-3 recovered tainted money from the pant pocketof the appellant – Conviction of appellant by courts below –Challenged on the ground that there were major contradictions onmaterial aspect in the testimonies of prosecution witnesses – Held:Minor discrepancy and inability of prosecution witnesses toFremember the exact details of whether or not the handwash or pantwash was done would not justify acquittal of the appellant –Deviations between the testimonies of PW-2 and PW-3 would notmean that the demand and payment of bribe, the trap and seizureof the bribe money was not proved – The contradictions that creptin the testimonies of PW-2 and PW-3 on the question of the totalGamount demanded were immaterial and inconsequential as it wasproved that the bribe was demanded and taken by the appellanton fateful day – The variations as highlighted would losesignificance in view of the proven facts on the recovery of bribemoney from the pant pocket of the appellant, on which depositionsHof PW-2, PW-3 and PW-5 were identical and not at variance – The money recovered was the currency notes that were treated and notedin the pre- raid proceedings – The contradictions as pointed outwere insignificant when juxtaposed with the vivid and eloquentnarration of incriminating facts proved and established beyonddoubt – Given the time gap of five to six years, minor contradictionson some details were bound to occur and are natural – Thewitnesses are not required to recollect and narrate the entire versionwith photographic memory notwithstanding the hiatus and passageof time – Picayune variations do not in any way negate andcontradict the main and core incriminatory evidence of the demandof bribe, reason why the bribe was demanded and the actual takingof the bribe that was paid, which are the ingredients of the offenceunder ss. 7 and 13 of the Act, that have been proved andestablished beyond reasonable doubt – Documents preparedcontemporaneously affirmed the primary and ocular evidence –Therefore, there was no good ground and reason to upset and setaside the findings recorded by the trial court that were upheld bythe High Court.

Prevention of Corruption Act, 1988: s.20 – Presumption asto acceptance of illegal gratification – In the case at hand, thecondition precedent to drawing a legal presumption that theaccused demanded and was paid the bribe money was proved andestablished by the incriminating material on record – Thus, thepresumption under s.20 of the Act was applicable for the offencecommitted by the appellant under s.7 of the Act – Appellant wasfound in possession of the bribe money and no reasonableexplanation was furnished that may rebut the presumption.

Prevention of Corruption Act, 1988: s.17 – Procedural lapse– Effect on prosecution case – Contention of appellant thatinvestigation was not conducted by the police officer by the rankand status of the Deputy Superintendent of Police or equal, butby Inspector (PW-5) and Inspector (PW-7) – Held: The contentionis rejected for the reason that while this lapse would be anirregularity and unless the irregularity has resulted in causingprejudice, the conviction will not be vitiated and bad in law –Appellant did not allege or even argue that any prejudice wascaused and suffered because the investigation was conducted bythe police officer of the rank of Inspector.

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APrevention of Corruption Act, 1988: s.19 – Sanction forprosecution – Appellant challenged the validity of sanction order– Held: There was no error in the sanction order – What the lawrequires is the application of mind by the Sanctioning authority onthe material placed before it to satisfy itself of prima facie casethat would constitute the offence – Sanctioning authority in hisBcross- examination was clear and categoric that he had receivedthe report of the Investigating Officer along with the kalandra oforal and documentary evidence – Sanctioning authority examinedand considered the relevant material in the form of oral anddocumentary evidence that were a part and parcel of the kalandra.C

Prevention of Corruption Act, 1988: s.19(1) – A mere error,omission or irregularity in sanction is not considered to be fatalunless it has resulted in a failure of justice or has been occasionedthereby – s.19(1) of the Act is matter of procedure and does notgo to the root of the jurisdiction and once the cognizance has beenDtaken by the court under the Code, it cannot be said that an invalidpolice report is the foundation of jurisdiction of the court to takecognizance and for that matter the trial.

Dismissing the appeal, the Court

HELD: 1.1 The deviations between the testimonies of PW-E2 and PW-3 does not mean that the demand and payment ofbribe, the trap and seizure of the bribe paid is not proved. TheInspector who had conducted the raid (PW-5) had deposed aboutthe recovery of bribe money on lines similar to the version ofPW-2 and PW-3. Turning to the question of washing the polytheneFbag, the hand-wash and the pant wash of the appellant, PW-5 hadstated that phenolphthalein powder was applied to the currencynotes and after the appellant was detained the polythene packetwas washed and the wash was transferred to the bottles markedP1 and P2 which were taken into possession. The polythene bagwas also seized. The aforesaid exhibits, i.e. P1 and P2 and theGpapers prepared have been accepted and proved in evidence byPW-2 and PW-3. [Paras 8, 9] [1145-B-C; 1146-A-C]

1.2 Regarding the hand-wash, PW-2 could not recollect fullfacts and had stated that as far as he could remember, theappellant had given his hand-wash and the polythene bag wasHalso washed. PW-2 had identified his signature on the bottles containing the wash of the polythene bag and also the signatureon the papers prepared. PW-3 had stated that the pant wash wasnot done. Ex facie the hand wash and the pant wash were notdone as the coated money was put in the polythene bag.Polythene bag was washed and the wash kept in the bottles ashas been deposed by PW-5. Minor discrepancy and inability ofPW-2 and PW-3 to remember the exact details of whether or notthe handwash or pant wash was done would not justify acquittalof the appellant. [Para 10] [1146-C-E]

1.3 The contradictions that have crept in the testimoniesof PW-2 and PW-3 and on the question of the total amountdemanded or whether PW-2 had earlier paid Rs.500/- areimmaterial and inconsequential as it is indisputable that the bribewas demanded and taken by the appellant on the fateful day. Thevariations as highlighted lose significance in view of the provenfacts on the recovery of bribe money from the pant pocket ofthe appellant, on which depositions of PW-2, PW-3 and PW-5 areidentical and not at variance. The contradictions as pointed outand noted are insignificant when juxtaposed with the vivid andeloquent narration of incriminating facts proved and establishedbeyond doubt and debate. It would be sound to be cognitive ofthe time gap between the date of occurrence, 3[rd] August 1994,and the dates when the testimony of PW-2 was recorded, 9[th] July1999 and 14[th] September 1999, and that testimony of PW-3 wasrecorded on 18[th] December 2000 and 30[th] January 2001. Giventhe time gap of five to six years, minor contradictions on somedetails are bound to occur and are natural. The witnesses arenot required to recollect and narrate the entire version withphotographic memory notwithstanding the hiatus and passage oftime. Documents prepared contemporaneously affirm theprimary and ocular evidence. Therefore, there is no good groundand reason to upset and set aside the findings recorded by thetrial court that were upheld by the High Court. [Para 11] [1146-F-H; 1147-A-D]

State of U.P. v. Dr. G.K. Ghosh (1984) 1 SCC 254 :

[1983] 3 SCR 993 – relied on.

2. On the question of reason for the demand and paymentof the bribe, the complainant (PW-2) is categoric that he hadtaken industrial shed on hire from PW-6. The shed did not have AB

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Aan electricity meter. PW-6 had denied having given the said shedon rent and was declared hostile. The testimony of PW-6 is,however, highly doubtful and not trustworthy, for he had failedand avoided to answer the question from whom he had purchasedthe shed. The fact that the shed did not have an electricityconnection as deposed to by PW-2 has not been challenged. PW-B2 in his cross-examination had specifically denied the suggestionthat he has not taken the shed on hire/rent. Interestingly, in thecross-examination one of the suggestions put to PW-2 was thathe had given an application for electricity connection to thepredecessor of the appellant and not to the appellant, thus,Csuggesting that PW-2 wanted installation of an electricity meterfor the shed. Therefore, the contention of the appellant that PW-2 had falsely deposed that he had taken the industrial shed onhire which did not have an electricity connection is not accepted.The deposition of PW-2 that he wanted an electricity connectionto be installed in the shed should be accepted. [Para 12] [1146-DF-G; 1147-A-C]

3. The statutory presumption under Section 20 of the Actcan be confuted by bringing on record some evidence, eitherdirect or circumstantial, that the money was accepted other than Efor the motive or the reward under Section 7 of the Act. Thestandard required for rebutting the presumption is tested on theanvil of preponderance of probabilities which is a threshold of alower degree than proof beyond all reasonable doubt. In the caseat hand, the condition precedent to drawing such a legalpresumption that the accused has demanded and was paid theFbribe money has been proved and established by theincriminating material on record. Thus, the presumption underSection 20 of the Act becomes applicable for the offencecommitted by the appellant under Section 7 of the Act. Theappellant was found in possession of the bribe money and noGreasonable explanation is forthcoming that may rebut thepresumption. Further, the recovery of the money from thepocket of the appellant has also been proved without doubt.Therefore, money was demanded and accepted not as a legalremuneration but as a motive or reward to provide electricityHconnection to PW-2 for the shed. [Paras 13, 14] [1149-C-F]

4. PW-1 had issued and granted sanction for prosecutionof the appellant. He had deposed that the appellant was workingas an inspector in DESU and he was the competent officer toremove him. He had, after carefully examining the allegationscontained in the material placed before him, granted the sanctionfor prosecution vide. PW-1 was specifically cross-examined andquestioned whether “he had received the copy of the statementof the witnesses recorded under Section 161 of the Code or theC.F.S.L report”. It is obvious that he had not asked for andreceived these reports or the statements under Section 161 ofthe Code. PW-1 in his cross- examination was, however, clearand categoric that he had received the report of the InvestigatingOfficer along with the kalandra of oral and documentaryevidence. The witness it is apparent may not be familiar withthe statements under Section 161 of the Code etc., but he hadcertainly examined and considered the relevant material in theform of oral and documentary evidence that were a part andparcel of the kalandra. [Paras 16, 17] [1150-A-B; 1151-D-F]

5. The last contention of the appellant is predicated onSection 17 of the Act and the fact that the investigation in thiscase was not conducted by the police officer by the rank andstatus of the Deputy Superintendent of Police or equal, but byInspector (PW-5) and Inspector (PW-7). The contention has tobe rejected for the reason that while this lapse would be anirregularity and unless the irregularity has resulted in causingprejudice, the conviction will not be vitiated and bad in law. Theappellant has not alleged or even argued that any prejudice wascaused and suffered because the investigation was conducted bythe police officer of the rank of Inspector. [Para 19] [1153-C-D]

Mohd. Iqbal Ahmed v. State of A.P. (1979) 4 SCC172 : [1979] 2 SCR 1007 – relied on.

6. A mere error, omission or irregularity in sanction is notconsidered to be fatal unless it has resulted in a failure of justiceor has been occasioned thereby. Section 19(1) of the Act ismatter of procedure and does not go to the root of thejurisdiction and once the cognizance has been taken by the courtunder the Code, it cannot be said that an invalid police reportis the foundation of jurisdiction of the court to take cognizance A

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Aand for that matter the trial. The conviction of the appellantunder Sections 7 and 13 of the Act is upheld. [Paras 20, 21][1153-F-G; 1154-A]

State of Karnataka v. Ameerjan (2007) 11 SCC 273 :[2007] 9 SCR 1105 ; State of Maharashtra v. MaheshBG. Jain (2013) 8 SCC 119 : [2013] 3 SCR 850 ; AshokTshering Bhutia v. State of Sikkim (2011) 4 SCC 402 :[2011] 3 SCR 242 – relied on.

Pravin Parekh, Sr. Adv., Lalit Chauhan, Aditya Sharma,Ms. Anwesha Padhi, Paritosh Arora, Nikhil Ramdev, M/S. Parekh &ECo., Advs. for the Appellant.

Ms. Aishwarya Bhati, Sr. Adv., V. Balaji, Sanjay Kumar Tyagi,B. V. Balram Das, Mrs. Anil Katiyar, Advs. for the Respondent.

The Judgment of the Court was delivered by SANJIV KHANNA, J.F

1. The impugned judgment dated 7[th] January 2009 passed by theHigh Court of Delhi upholds conviction of Vinod Kumar Garg (‘theappellant’, for short) under Sections 7 and 13 of the Prevention ofCorruption Act, 1988 (‘the Act’, for short) imposed by the Special Judge,Delhi vide judgement dated 27[th] March 2002. The appellant has beenGsentenced to undergo rigorous imprisonment for one and a half years,and fine of Rs. 1,000/- for each offence and in default of payment toundergo simple imprisonment for three months on both countsseparately. The sentences have been directed to run concurrently.

2. Challenging the conviction, the learned senior advocate for theHappellant submits that there are major contradictions on material aspects

in the testimonies of the complainant Nand Lal (PW-2) and the panchwitness Hemant Kumar (PW-3). Nand Lal (PW-2) in his courttestimony recorded on 9[th] July 1999 had denied to having paid anymoney to the appellant prior to lodging of the complaint, but in hiscomplaint (Exhibit PW-2/A) dated 2[nd] August 1994, Nand Lal (PW-2)had alleged that he had fifteen days back paid Rs. 500/- to the appellant.Further, Nand Lal (PW-2) in his examination-in-chief on hand-wash hadclaimed that it was taken and perhaps polythene bag was also washed,but in his cross-examination PW-2 had accepted that hand-wash of theappellant was not taken. Similarly, Hemant Kumar (PW-3) hadcontradicted the version in his examination that the pant wash of theaccused was taken at the Anti-Corruption Branch, as in his cross-examination Hemant Kumar (PW-3) had accepted the suggestion thatthe hand-wash and pocket wash were not taken after the appellant wasapprehended. Inspector Rohtash Singh (PW-5) who had conducted theraid has admitted that he had not taken the hand-wash or the pant washof the appellant from which the polythene packet containing the bribemoney was allegedly seized. Further, the testimonies of Nand Lal (PW-2) and Hemant Kumar (PW-3) reveal a major dichotomy on the amountthat the appellant had allegedly demanded as bribe. In his cross-examination Nand Lal (PW-2) had denied the suggestion that theappellant had asked for Rs. 2,000/- to be paid separately by Nand Lal(PW-2) and Hemant Kumar (PW-3) as the two were partners, contraryto the version given by Hemant Kumar (PW-3) who had deposed thatthe appellant had told them in the gallery that each of them should payRs. 2,000/-. There is a contradiction in the testimony of Nand Lal (PW-2) and Hemant Kumar (PW-3) as to the place where the allegedly bribemoney was asked and paid to the appellant. As per Nand Lal (PW-2)the bribe was asked and paid in the garment shop, whereas HemantKumar (PW-3) has denied that the payment took place inside the clothshop. Drawing our attention to the version of Nand Lal (PW-2), it wassubmitted that Hemant Kumar (PW-3) was not an eyewitness or apanch witness to the demand and payment of alleged bribe money. Inview of the irreconcilable versions of the two witnesses, the appellantis entitled to benefit of doubt. Further, there is no evidence or documentto show that Nand Lal (PW-2) was the tenant in the shed for whichthe appellant had statedly asked for bribe money to provide the electricitymeter. Anil Ahuja (PW-6), the owner of the shed has not supportedthe case of the prosecution and had contradicted the claim made byNand Lal (PW-2) in his complaint (Exhibit PW-2/A).

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A3. On the question of demand and payment of bribe forperformance of public duty or forbearance to perform such duty, wewould read the testimonies of the complainant – Nand Lal (PW-2),panch witness – Hemant Kumar (PW-3), and the Inspector of Anti-Corruption Branch – Rohtash Singh (PW-5) in unison. Nand Lal (PW-2) has deposed having visited the DESU office and his meeting withBInspector Yadav for installation of electricity meter in the shed for afan and a light. Nand Lal (PW-2) after shifting his goods etc. to theshed had again visited the DESU Office and learnt that Inspector Yadavhad been transferred. Nand Lal (PW-2) had met his successor-theappellant, who had asked him to move an application for providing aCmeter for the electricity connection. The appellant had also stated thatelectricity could be provided without meter for which Nand Lal (PW-2) was asked to pay bribe of Rs.2,000/-. Thereupon, Nand Lal (PW-2)had expressed his inability to pay Rs.2,000/- in lumpsum but he couldpay the bribe amount in instalments of Rs.500/- each, which the appellantDhad agreed and accepted. Thereafter, Nand Lal (PW-2) had visited theAnti-Corruption Branch and lodged his complaint on 2[nd] August 1994vide Exhibit PW-2/A that was signed by him at Point A. Both HemantKumar (PW-3) and Inspector Rohtash Singh (PW-5) have in seriatimconfirmed the relevant ensuing events. Nand Lal (PW-2), HemantKumar (PW-3) and Rohtash Singh (PW-5) have affirmed that NandELal (PW-2) had produced five currency notes of Rs.100/- each, theserial numbers of which were duly recorded and the notes weresprinkled with powder. The three had then along with other membersof the raiding team proceeded to the DESU office but the appellanthad asked Nand Lal (PW-2) to come on the next day, as the work wouldFnot be done on 2[nd] August 1994. On 3[rd] August 1994, Nand Lal (PW-2) had again visited the Anti-Corruption Branch office where HemantKumar (PW-3) and Rohtash Singh (PW-5) were present. The currencynotes were again subjected to chemical treatment and the raiding partyhad proceeded to the DESU office. Nand Lal (PW-2) and HemantKumar (PW-3) had met the appellant, who had then asked Nand LalG(PW-2) to wait on the appellant’s scooter parked outside the office.After some time, the appellant came out of the office. He started thescooter and they drove for about 50 yards with Nand Lal (PW-2) sittingon the pillion seat. Nand Lal (PW-2) in his deposition has stated thathe had asked the appellant to stop the scooter as the third person –HHemant Kumar (PW-3) was also accompanying them.

4. Thereafter, there is divergence in the version given by NandLal (PW-2) on one side and the version given by Hemant Kumar (PW-3) and Rohtash Singh (PW-5). Nand Lal (PW-2) has testified that theappellant after stopping the scooter went inside a garment shop. Hehad then asked Nand Lal (PW-2) to come inside. Nand Lal (PW-2)proceeded inside. The appellant had then demanded money from NandLal (PW-2) – “lao, paise do”. The appellant had procured onepolythene bag and Nand Lal (PW-2) was asked to put the money inthe polythene bag and thereafter put the polythene bag in the appellant’spocket. Nand Lal (PW-2) had suggested that he would give money inthe presence of the other person, i.e., Hemant Kumar (PW-3), whichsuggestion was not accepted by the appellant. Nand Lal (PW-2) is,however, categoric that he had as directed put the money in the pocketof the pant of the appellant. Thereafter, Nand Lal (PW-2) went outsideand gave signal to the witness Hemant Kumar (PW-3) who started tomove towards him. The appellant came out of the shop. Nand Lal (PW-2) also accepts that Hemant Kumar (PW-3) had given signal to theraiding team who reached the spot and had caught hold of the appellant.From the pant pocket of the appellant, a polythene bag containing thecurrency notes was seized. Thus, Nand Lal (PW-2) accepts that bribewas demanded and paid and that the tainted bribe money was recoveredfrom the appellant by Rohtash Singh (PW-5) in his presence and in thepresence of Hemant Kumar (PW-3).

5. Hemant Kumar (PW-3) has on the other hand unfailinglyaffirmed that he had joined the raiding team as panch witness and thatNand Lal (PW-2) had recorded his statement/complaint vide ExhibitPW-2/A. Hemant Kumar (PW-3) has deposed as to the five currencynotes of Rs. 100/- each given by the complainant to the Anti-CorruptionBranch office on which phenolphthalein powder was coated.Instructions were given. On 2[nd] August 1994 at about 10:00 -10:30 a.m.,the raiding team had visited the DESU office but the appellant hadasked Nand Lal (PW-2) to come on the next day. On 3[rd] August 1994at 9:30 a.m. Hemant Kumar (PW-3) had visited the Anti-CorruptionBranch office. Nand Lal (PW-2) was present and the entire exerciseof powdering the currency notes etc. was repeated. Hemant Kumar(PW-3) and Nand Lal (PW-2) along with the raiding team had reachedthe DESU office at about 10:00 a.m. The appellant took Nand Lal (PW-2) outside the DESU office and they drove away on the scooter.Hemant Kumar (PW-3) had followed them on foot. The scooter was AB

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Adriven to a distance of about 50 yards from the DESU office.Thereupon, the appellant and Nand Lal (PW-2) had proceeded near acloth shop where Nand Lal (PW-2) had handed over the tainted moneyto the appellant after placing it in a polythene bag in his presence. Theappellant had kept the polythene bag with the currency notes in theright-side pant pocket of the appellant. The raiding party arrived at theBspot and recovered the notes from the right-side pocket of the pant ofthe appellant. The notes were tallied with the numbers already notedand the same were seized by Exhibit PW-2/C. Thereupon, the appellant-accused was taken to the Anti-Corruption Branch.

6. The two testimonies of Nand Lal (PW-2) and Hemant KumarC(PW-3) on visit by the raiding team to the DESU office on 2[nd] August1994 when the appellant had asked Nand Lal (PW-2) to come on thenext day; that on 3[rd] August 1994 Nand Lal (PW-2) and HemantKumar (PW-3) along with the raiding team had accordingly again visitedthe DESU office; that the appellant and Nand Lal (PW-2) had travelledDon the scooter for a short distance; and that Hemant Kumar (PW-3)had followed them on foot, are affirmed by Inspector Rohtash Singh(PW-5) who has also identically deposed, albeit he was not the personwho had initially interacted with the appellant at the DESU office.

7. On the succeeding events, Rohtash Singh (PW-5) in hisEtestimony has affirmed the narration of facts as stated by HemantKumar (PW-3). Hemant Kumar (PW-3) gave a signal and accordinglymembers of the raiding team had reached the spot and apprehendedthe appellant. Rohtash Singh (PW-5) had then disclosed his identity tothe appellant and had challenged him that the appellant had acceptedthe bribe money from Nand Lal (PW-2). Rohtash Singh (PW-5) hadFoffered for his search, but it was refused by the appellant. The appellantwas searched and polythene bag containing five Rs.100/- currency noteswas recovered from the right-side pant pocket of the appellant. Thefive notes were marked P-3 to P-7 and were seized vide seizure memoPW-2/C. The numbers on the currency notes were tallied with the pre-Graid report and were found to be the same.

8. Even if we are to accept the version of Nand Lal (PW-2),the appellant had asked for the bribe money that was paid to theappellant and at best at that time Hemant Kumar (PW-3) was notphysically present inside the shop and was standing outside the shop.HNand Lal (PW-2) in his examination-in-chief has stated that the appellant

had demanded money from him saying – “Lao paise do”. Thereafter,Rs. 500/- were paid as bribe by Nand Lal (PW-2) to the appellant in apolythene bag which was put in the appellant’s pant pocket as wasdirected by the appellant. The presence of Hemant Kumar (PW-3) inthe immediate vicinity remains unchallenged. In either case, we do notthink that this deviation and incongruity between the depositions by NandLal (PW-2) and Hemant Kumar (PW-3) should result in the acquittalof the appellant. These deviations between the testimonies of Nand Lal(PW-2) and Hemant Kumar (PW-3) does not mean that the demandand payment of bribe, the trap and seizure of the bribe paid is notproved. The testimony of Rohtash Singh (PW-5) bolsters our findings.Rohtash Singh (PW-5) has deposed about the recovery of bribe moneyon lines similar to the version of Nand Lal (PW-2) and Hemant Kumar(PW-3). It appears that Nand Lal (PW-2) had either tried to help theappellant but was unable do so in view of the documentary evidencein the form of his written complaint – Exhibit PW-2/A signed by him atpoint A and other documents prepared at the spot with his signature,or because of the time gap had forgotten some facts. On the first aspectrelating to the contemporaneous documents, we would refer to thecross-examination of Nand Lal (PW-2) by the Additional PublicProsecutor on 14[th] September 1999 which reads as under:

“...I cannot say whether the numbers of the said GC notes werefound to be same which were mentioned in the pre-raid report.It is wrong that I am not intentionally disclosing this fact. It iscorrect that seizure memo of GC notes were prepared in mypresence which is Ex. PW 2/C which bears my signature at pointA. It is correct that GC notes Ex. P3 to P7 are the same whichwere recovered from the possession of the accused and wereseized vide memo Ex. PW 2/C. It is correct that said polythenebag was got washed in colourless solution of sodium carbonateand that solution had turned pink and that solution was transferredinto two bottles and the bottles were properly sealed and labeled.Bottles are Ex. P1 and P2 which bears my signatures on eachbottle at point A. Polythene bag wash Ex. P1 and P2 were takeninto possession vide seizure memo Ex.PW 2/D which bears mysignatures at point A. Polythene bag is Ex. P8 which bears mysignature at point A. Polythene bag Ex. P8 was taken intopossession vide memo Ex. PW 2/F which bears my signature atpoint A.”

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A9. Turning to the question of washing the polythene bag, the hand-wash and the pant wash of the appellant, Rohtash Singh (PW-5) hasstated that phenolphthalein powder was applied to the currency notesand after the appellant was detained the polythene packet was washedand the wash was transferred to the bottles marked P1 and P2 whichwere taken into possession vide Exhibit PW-2/D. The polythene bagBwas also seized vide Exhibit PW-2/E. Raid memo proceedings weremarked as Exhibit PW-2/G and post-raid proceedings as Exhibit PW-2/K. The aforesaid exhibits, i.e. P1 and P2 and the papers preparedhave been accepted and proved in evidence by Nand Lal (PW-2) andHemant Kumar (PW-3).C

10. Regarding the hand-wash, Nand Lal (PW-2) could notrecollect full facts and had stated that as far as he could remember,the appellant had given his hand-wash and the polythene bag was alsowashed. Nand Lal (PW-2) had identified his signature on the bottlescontaining the wash of the polythene bag and also the signature on theDpapers prepared. Hemant Kumar (PW-3) had stated that the pant washwas not done. We would observe that ex facie the hand wash and thepant wash were not done as the coated money was put in the polythenebag. Polythene bag was washed and the wash kept in the bottles ashas been deposed by Rohtash Singh (PW-5). Minor discrepancy andinability of Nand Lal (PW-2) and Hemant Kumar (PW-3) to rememberEthe exact details of whether or not the handwash or pant wash wasdone would not justify acquittal of the appellant.

11. The contradictions that have crept in the testimonies of NandLal (PW-2) and Hemant Kumar (PW-3) noticed above and on thequestion of the total amount demanded or whether Nand Lal (PW-2)Fhad earlier paid Rs.500/- are immaterial and inconsequential as it isindisputable that the bribe was demanded and taken by the appellanton 3[rd] August 1994 at about 10:30 a.m. The variations as highlightedlose significance in view of the proven facts on the recovery of bribemoney from the pant pocket of the appellant, on which depositions ofGNand Lal (PW-2), Hemant Kumar (PW-3) and Rohtash Singh (PW-5)are identical and not at variance. The money recovered was thecurrency notes that were treated and noted in the pre-raid proceedingsvide Exhibit PW-2/G. The aspect of demand and payment of the bribehas been examined and dealt with above. The contradictions as pointedout to us and noted are insignificant when juxtaposed with the vividHand eloquent narration of incriminating facts proved and established beyond doubt and debate. It would be sound to be cognitive of the timegap between the date of occurrence, 3[rd] August 1994, and the dateswhen the testimony of Nand Lal (PW-2) was recorded, 9[th] July 1999and 14[th] September 1999, and that Hemant Kumar’s (PW-3) testimonywas recorded on 18[th] December 2000 and 30[th] January 2001. Giventhe time gap of five to six years, minor contradictions on some detailsare bound to occur and are natural. The witnesses are not required torecollect and narrate the entire version with photographic memorynotwithstanding the hiatus and passage of time. Picayune variations donot in any way negate and contradict the main and core incriminatoryevidence of the demand of bribe, reason why the bribe was demandedand the actual taking of the bribe that was paid, which are the ingredientsof the offence under Sections 7 and 13 of the Act, that as noticed aboveand hereinafter, have been proved and established beyond reasonabledoubt. Documents prepared contemporaneously noticed above affirmthe primary and ocular evidence. We, therefore, find no good groundand reason to upset and set aside the findings recorded by the trial courtthat have been upheld by the High Court. Relevant in this context wouldbe to refer to the judgment of this Court in State of U.P. v. Dr. G.K.Ghosh[1]wherein it was held that in a case involving an offence ofdemanding and accepting illegal gratification, depending on thecircumstances of the case, it may be safe to accept the prosecutionversion on the basis of the oral evidence of the complainant and theofficial witnesses even if the trap witnesses turn hostile or are foundnot to be independent. When besides such evidence, there iscircumstantial evidence which is consistent with the guilt of the accusedand inconsistent with his innocence, there should be no difficulty inupholding the conviction.

12. On the question of reason for the demand and payment ofthe bribe, the complainant Nand Lal (PW-2) is categoric that he hadtaken industrial shed in DSIDC area, Welcome Colony, Seelam Pur,Delhi on hire from one Anil Ahuja. The shed did not have an electricitymeter. Anil Ahuja, who had appeared as PW-6, had denied having giventhe said shed on rent and was declared hostile. The testimony of PW-6 is, however, highly doubtful and not trustworthy, for he had failed andavoided to answer the question from whom he had purchased the shed.The fact that the shed did not have an electricity connection as deposed AB

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Ato by Nand Lal (PW-2) has not been challenged. Nand Lal (PW-2) inhis cross-examination had specifically denied the suggestion that he hasnot taken the shed on hire/rent. Interestingly, in the cross-examinationone of the suggestions put to Nand Lal (PW-2) was that he had givenan application for electricity connection to the predecessor of theappellant and not to the appellant, thus, suggesting that Nand Lal (PW-B2) wanted installation of an electricity meter for the shed. We would,therefore, reject the contention of the appellant that Nand Lal (PW-2)had falsely deposed that he had taken the industrial shed on hire whichdid not have an electricity connection. The deposition of Nand Lal (PW-2) that he wanted an electricity connection to be installed in the shedCshould be accepted.

13. On the said aspect, we would now refer to Section 20 ofthe Act which reads as under:

“20. Presumption where public servant accepts gratification otherthan legal remunerationD

(1) Where, in any trial of an offence punishable underSection 7 or Section 11 or clause (a) or clause (b) orsub-section (1) of Section 13 it is proved that an accusedperson has accepted or obtained or has agreed to acceptor attempted to obtain for himself, or for any otherEperson, any gratification (other than legal remuneration)or any valuable thing from any person, it shall bepresumed, unless the contrary is proved, that heaccepted or obtained or agreed to accept or attemptedto obtain that gratification or that valuable thing, as theFcase may be, as a motive or reward such as ismentioned in Section 7 or, as the case may be, withoutconsideration or for a consideration which he knows tobe inadequate.

(2) Where in any trial of an offence punishable underGSection 12 or under clause (b) of Section 14, it is provedthat any gratification (other than legal remuneration) orany valuable thing has been given or offered to be givenor attempted to be given by an accused person, it shallbe presumed, unless the contrary is proved, that he gaveor offered to give or attempted to give that gratificationHor that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7, or, as thecase may be, without consideration or for aconsideration which he knows to be inadequate.

(3) Notwithstanding anything contained in sub-sections (1)and (2), the court may decline to draw the presumptionreferred to in either of the said sub-sections, if thegratification or thing aforesaid is, in its opinion, so trivialthat no interference of corruption may fairly be drawn.”

The statutory presumption under Section 20 of the Act can beconfuted by bringing on record some evidence, either direct orcircumstantial, that the money was accepted other than for the motiveor the reward under Section 7 of the Act. The standard required forrebutting the presumption is tested on the anvil of preponderance ofprobabilities which is a threshold of a lower degree than proof beyondall reasonable doubt.

14. In the case at hand, the condition precedent to drawing sucha legal presumption that the accused has demanded and was paid thebribe money has been proved and established by the incriminatingmaterial on record. Thus, the presumption under Section 20 of the Actbecomes applicable for the offence committed by the appellant underSection 7 of the Act. The appellant was found in possession of the bribemoney and no reasonable explanation is forthcoming that may rebutthe presumption. Further, the recovery of the money from the pocketof the appellant has also been proved without doubt. We, therefore, holdthat money was demanded and accepted not as a legal remunerationbut as a motive or reward to provide electricity connection to NandLal (PW-2) for the shed.

15. Pertinent in this regard would be the statement made by theappellant under Section 313 of the Code of Criminal Procedure, 1973(‘the Code’, for short) wherein in response to most of the questions,the appellant had expressed his inability to answer or denied theevidence proved. The appellant had accepted his arrest but haddebunked the case as false and the CFSL report (Exhibit PW-4/A) asbiased and motivated. In response to the last question, the appellanthad alleged that Nand Lal (PW-2) and Hemant Kumar (PW-3) hadnot supported the prosecution case and that he was innocent as he hadnever demanded or accepted any money as bribe.

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A16. We would now turn our attention to the two technicalobjections taken by the appellant in respect of the sanction order andthe validity of investigation. In the present case, Navin Chawla (PW-1) had issued and granted sanction for prosecution of the appellant. Hehad deposed that the appellant was working as an inspector in DESUBand he was the competent officer to remove him. He had, aftercarefully examining the allegations contained in the material placedbefore him, granted the sanction for prosecution vide order Exhibit PW-1/A. Paragraphs 1 and 2 of the sanction order Exhibit PW-1/A read:

“Whereas it is alleged that Sh. Vinod Kumar Garg whileCfunctioning as Inspector, DESU (now DVB) Office Seelam Pur,Delhi, a public servant in the discharge of this official dutydemanded Rs. 2,000/- as illegal gratification from Sh. Nand LalS/o Shri Megh Raj r/o H.N. 341/20, Mangal Sain Building, BaghKare Khan, Delhi-110007 in consideration for installing an electricmeter at shop No. A-2 DSIDC Welcome Colony, Seelam Pur,DDelhi, without proper formalities. Sh. Vinod Kumar Garg,Inspector, DESU (now DVB) office Seelam Pur, Delhi,demanded, accepted and obtained Rs. 500/- (second instalment)as illegal gratification from the complaint.

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Whereas I, Navin Chawla, Chairman, D.V.B., New Delhi beingthe authority competent to remove Sh. Vinod Kumar Garg, DVBOffice Seelam Pur, Delhi from office/services after fully andcarefully examining the material before me in regard to the saidallegation and circumstances of the case consider the saidFInspector, Vinod Kumar Garg, DVB Office Seelam Put, Delhibe prosecuted in the Court of Law for the said offence/offences.”

17. Relevant portion of Navin Chawla’s (PW-1) examination-in-chief and the entire cross-examination read as under:

G“After fully and carefully examining the allegation contained inthe material placed before me and the circumstances of the caseI granted sanction for prosecution of Vinod Kumar Garg videmy order Ex. PW 1/A. This order bears my signature at point‘A’.”

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Cross-Examination

“I had received a request for grant of sanction from the Anti-Corruption Branch. I had received along with the report of theI.O. calendars (sic kalandra) of oral and documentary evidence.It is correct that in this case, I had not received copies ofstatements of witnesses recorded u/s. 161 P.C. (sic Cr.P.C) orthe seizure memos regarding the seizure of the bribe money. Ihad not received any copy of the report of the C.F.S.L. I hadalso received a format of the sanction order. I did not verify fromthe records of DESU whether the complainant had applied foran electric connection. I did not verify whether the complaint wasa tenant or allottee of D.S.I.D.C. shed. In fact, I had grantedthe sanction only on the basis of the report of the IO andcalendars (sic kalandra) of oral and documentary evidencefurnished by the Anti-Corruption Branch.”

Navin Chawla (PW-1) was specifically cross-examined andquestioned whether “he had received the copy of the statement of thewitnesses recorded under Section 161 of the Code or the C.F.S.Lreport”. It is obvious that he had not asked for and received thesereports or the statements under Section 161 of the Code. Navin Chawla(PW-1) in his cross-examination was, however, clear and categoric thathe had received the report of the Investigating Officer along with thekalandra of oral and documentary evidence. The witness it is apparentmay not be familiar with the statements under Section 161 of the Codeetc., but he had certainly examined and considered the relevant materialin the form of oral and documentary evidence that were a part andparcel of the kalandra. We have to read the cross-examination ofNavin Chawla (PW-1) in entirety and not in piecemeal.

18. The appellant has relied upon the judgments of this Court inMohd. Iqbal Ahmed v. State of A.P.[2]and State of Karnataka v.Ameerjan[3]to challenge the sanction order. In Mohd. Iqbal Ahmed(supra) it was observed that a valid sanction is the one that is grantedby the Sanctioning Authority after being satisfied that a case for sanctionis made out constituting the offence. It is important to be mindful ofthe observations made by the Court as reproduced below:

2 (1979) 4 SCC 172

3 (2007) 11 SCC 273

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SUPREME COURT REPORTS

A“3. […] what the Court has to see is whether or not theSanctioning Authority at the time of giving sanction was awareof the facts constituting the offence and applied its mind for thesame…”

Similarly, in Ameerjan (supra), it was observed:

B“10. […] Ordinarily, before passing an order of sanction, theentire records containing the materials collected against theaccused should be placed before the sanctioning authority. In theevent, the order of sanction does not indicate application of mindas (sic to) the materials placed before the said authority beforeCthe order of sanction was passed, the same may be producedbefore the court to show materials had in fact been produced.”

Therefore, what the law requires is the application of mind bythe Sanctioning Authority on the material placed before it to satisfy itselfof prima facie case that would constitute the offence. On the saidaspect, the later decision of this Court in State of Maharashtra v.DMahesh G. Jain[4]has referred to several decisions to expound on thefollowing principles of law governing the validity of sanction:

“14.1. It is incumbent on the prosecution to prove that the validsanction has been granted by the sanctioning authority after beingsatisfied that a case for sanction has been made out.E

14.2. The sanction order may expressly show that the sanctioningauthority has perused the material placed before it and, afterconsideration of the circumstances, has granted sanction forprosecution.

14.3. The prosecution may prove by adducing the evidence thatFthe material was placed before the sanctioning authority and itssatisfaction was arrived at upon perusal of the material placedbefore it.

14.4. Grant of sanction is only an administrative function and thesanctioning authority is required to prima facie reach theGsatisfaction that relevant facts would constitute the offence.

14.5. The adequacy of material placed before the sanctioningauthority cannot be gone into by the court as it does not sit inappeal over the sanction order.

H4 (2013) 8 SCC 119

14.6. If the sanctioning authority has perused all the materialsplaced before it and some of them have not been proved thatwould not vitiate the order of sanction.

14.7. The order of sanction is a prerequisite as it is intended toprovide a safeguard to a public servant against frivolous andvexatious litigants, but simultaneously an order of sanction shouldnot be construed in a pedantic manner and there should not be ahypertechnical approach to test its validity.”

The contention of the appellant, therefore, fails and is rejected.

19. The last contention of the appellant is predicated on Section17 of the Act and the fact that the investigation in the present casewas not conducted by the police officer by the rank and status of theDeputy Superintendent of Police or equal, but by Inspector RohtashSingh (PW-5) and Inspector Shobhan Singh (PW-7). The contentionhas to be rejected for the reason that while this lapse would be anirregularity and unless the irregularity has resulted in causing prejudice,the conviction will not be vitiated and bad in law. The appellant has notalleged or even argued that any prejudice was caused and sufferedbecause the investigation was conducted by the police officer of therank of Inspector, namely Rohtash Singh (PW-5) and Shobhan Singh(PW-7).

20. This Court in Ashok Tshering Bhutia v. State of Sikkim[5]referring to the earlier precedents has observed that a defect orirregularity in investigation however serious, would have no directbearing on the competence or procedure relating to cognizance or trial.Where the cognizance of the case has already been taken and the casehas proceeded to termination, the invalidity of the precedent investigationdoes not vitiate the result, unless a miscarriage of justice has beencaused thereby. Similar is the position with regard to the validity of thesanction. A mere error, omission or irregularity in sanction is notconsidered to be fatal unless it has resulted in a failure of justice orhas been occasioned thereby. Section 19(1) of the Act is matter ofprocedure and does not go to the root of the jurisdiction and once thecognizance has been taken by the court under the Code, it cannot besaid that an invalid police report is the foundation of jurisdiction of thecourt to take cognizance and for that matter the trial.

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A21. For the foregoing reasons, we dismiss the present appeal anduphold the conviction of the appellant under Sections 7 and 13 of theAct and the sentences as imposed. The appellant would surrender withina period of four weeks from today to undergo the remaining sentence.On failure to surrender, coercive steps would be taken by the trial court.

All pending applications are also disposed of.B

Devika Gujral

Appeal dismissed.

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