Bashir Ahmad Sheikh v. State of J&K

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 CRA No.19/2014 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 CRA No.19/2014 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 CRA No.19/2014 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 CRA No.19/2014 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 CRA No.19/2014 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 CRA No.19/2014 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 CRA No.19/2014 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, CRA No.19/2014 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 CRA No.19/2014 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 CRA No.19/2014 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 CRA No.19/2014 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 CRA No.19/2014 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 CRA No.19/2014 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 CRA No.19/2014 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 CRA No.19/2014 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 CRA No.19/2014 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 CRA No.19/2014 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 CRA No.19/2014 functioning as the SHO P/S VOK. The witness has stated that upon receipt of the written complaint he himself entrusted 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 the complainant accompanied by 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. CRA No.19/2014 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 CRA No.19/2014 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 CRA No.19/2014 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 CRA No.19/2014 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 CRA No.19/2014 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 CRA No.19/2014 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 CRA No.19/2014 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 which CRA No.19/2014 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 CRA No.19/2014 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 CRA No.19/2014 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. CRA No.19/2014

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-(cid:224)-vis the same offences, held that mere recovery by itself, would not prove the charge CRA No.19/2014 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 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 CRA No.19/2014 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. Srinagar 21.08.2025 Ajaz Ahmad, Secretary Whether approved for reporting? Yes/No. (Vinod Chatterji Koul) Judge CRA No.19/2014