TMI Blog2015 (3) TMI 1383X X X X Extracts X X X X X X X X Extracts X X X X ..... ke receipt thereof on his behalf. Contrarily, in the case before us, Accused 1's absence from the office at the time of the trap strengthens, rather than weakens, the claim that his junior officer, Accused 2, was receiving part of the bribe amount as a custodian on his behalf. Bail of both Accused stands hereby cancelled. Consequently, it is directed that the Accused persons are to be taken into custody forthwith, to serve out the remainder of their sentences - Appeal dismissed. - CRIMINAL APPEAL NO.787 OF 2011 WITH CRIMINAL APPEAL No.788 of 2011 - - - Dated:- 10-3-2015 - DIPAK MISRA AND VIKRAMAJIT SEN, JJ. For the Appellant : R. Anand Padmanabhan, Shashi Bhushan Kumar, K.K. Mani and T. Archana, Advs. For the Respondent : Rajiv Nanda, Prakriti Purnima, B.V. Balaram Das and Arvind Kumar Sharma, Advs. JUDGMENT VIKRAMAJIT SEN, J. 1. These two Appeals before us assail the common judgment dated 8.9.2010 of the Madras High Court which only partly allowed the Appeals before it, in favour of the Accused-Appellants. The Appellant in Criminal Appeal No. 787/2011 is the First Accused; Appellant in Criminal Appeal No. 788/2011 is the Second Accused. The Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he office cabin of Accused 1, who was not to be found present there, but on encountering Accused 2, PW2 was told by him that Accused 1 had shortly earlier left the office, to visit his indisposed wife. Accused 2 told PW2 that he had been instructed by Accused 1 to collect the moneys on behalf of them both. PW2 handed over the currency notes to Accused 2, who then handled these with both hands, and placed them in his shirt pocket. PW3 witnessed the transaction, having stood alongside PW2. PW2 walked out of the office and signaled to the trap team, whereupon PW6 entered the office and subjected Accused 2 to the sodium carbonate solution test, which tested affirmative, both hands of Accused 2 having been dipped in the solution, turning it pink. Accused 2 was then directed by PW6 to return the notes, which he did, by first going into Accused 1's office, and, thereafter back to his own desk, where the currency notes had been kept inside his right drawer. The currency notes were then surrendered to PW6. A mahazar was prepared, the incriminating property seized, and two witnesses signed the mahazar. Accused 1 was subsequently arrested. 3. Both Accused were charged with offences und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s maintained that the second notice was bona fide, and was issued only for the purpose of extending the limitation period connected with the Excise demand in question. The Assistant Commissioner, PW4, accepted this rationale in his evidence given before the Trial Court but deposed that Accused 1 ought to have obtained the necessary permission from him before issuing the second notice, which issue had already been adjudicated earlier by PW4. It is on this basis that the second notice was held to be illegal by both the Courts below. 6. This Court has ratiocinated in significant length and detail on the nature of evidence commonly encountered in trap cases in anti-corruption prosecutions, appreciably drawing the distinction between accomplice evidence, and decoy/trap witness evidence. Both categories are vitally important in this case. Accomplice evidence is addressed by Sections 133 and 114 (b) of the Evidence Act, which though does not make explicit use of the word accomplice . In M.O. Shamsudhin v. State of Kerala (1995) 3 SCC 351, this Court has observed that the relation between Section 133 which is a rule of law and Illustration (b) to Section 114 which is a rule of prudenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y elect to testify. This selfsame distinction and posture may derive sustenance from the decision of a Constitution Bench of this Court in State of Bihar v. Basawan Singh AIR 1958 SC 500, where Their Lordships held that no inflexible rule had been laid down in an earlier judgment that the evidence of the witnesses of the raiding party must be discarded in the absence of any independent corroboration. Their Lordships opined that: if any of the witnesses are accomplices who are particeps criminis in respect of the crime charged, their evidence must be treated as the evidence of accomplices is treated; if they are not accomplices but are partisan or interested witnesses, who are concerned in the success of the trap, their evidence must be tested in the same way as other interested evidence is tested by the application of diverse considerations which must vary from case to case, and in a proper case, the Court may even look for independent corroboration before convicting the accused person . 9. It would therefore be a derogation and perversion of the purpose and object of anti-corruption law to invariably presuppose that a trap/decoy witness is an interested witness , with an ulte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffice at the time of entrapment. This predication cannot stand, as it has not even remotely been suggested by Accused 1 whether, and if so, how, the Complainant could have known or imagined that Accused 1 would be absent from the office at the precise hour of entrapment. 12. From the perspective of the Complainant, Accused 1 would have been the ostensibly competent authority, and not his junior, Accused 2. Accused 2 did not have the ostensible authority to himself withdraw the demand notice which was issued and signed by Accused 1. The source of the bribe demand would most likely have been the ostensible authority as regards the notice, that is to say Accused 1 and not Accused 2, though it is proven that Accused 2 too demanded his moiety, and he was eventually trapped while taking it. The Trial Court was palpably percipient of this ostensibility, albeit a different dimension thereof, concluding that the evidence of PW2 decoy is well corroborated by circumstantial evidence. 13. Any defence of bona fide issuance by Accused 1 of the second notice, putatively issued for limitation purposes, is swiftly undercut by the proven illegality of the notice, prior imprimatur of the Assist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce by examining any of the officials from the head office. The testimonies of DW2 and DW3, stating the absence of Accused 1 in the office at the relevant time, were disbelieved, keeping in view their subordination, and therefore likely tutelage as witnesses, being beholden to Accused 1 and his status as superior. The attendance register of the office also marked the presence of Accused 1 on 04.06.96, and whilst it has been accepted that Accused 1 was not present at the time of receipt (in support whereof he examined the doctor attending to his wife), Accused 1 does not have any similar external alibis to uphold his claim of having been summoned to the head office at the hour of the bribe demand. It is, in our view, positively settled that Accused 1 was present in the office that forenoon. Beyond this point, the conviction of Accused 1 will depend upon a convincing commixture of circumstances and testimonies of the Complainant and Accused 2, which, as we have already declared, we find firmly substantiated. 16. M.O. Shamsudhin, bearing some degree of factual resemblance to this case qua the trapping of one accused and evasion by other, is analogically assertive for the present de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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