# Mir Mustafa Ali Hasmi v. The State of A.P

- **Citation:** 2024 INSC 503
- **Court:** Supreme Court of India
- **Decided:** 2024-07-10
- **Case number:** Criminal Appeal No. 2845 of 2024
- **Bench:** B.R. Gavai, Sandeep Mehta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mir-mustafa-ali-hasmi-v-the-state-of-a-p-37921
- **Pages:** 28

## Headnote

The question arose whether the prosecution was able to prove
beyond all manner of doubt the fact that the appellant demanded
and accepted bribe from the complainant; and whether the courts
below were justified in convicting and sentencing the appellant for
offence punishable u/ss.7 and 13(1)(d) r/w 13(2) of the Prevention
of Corruption Act, 1988, for the demand and acceptance of illegal
gratification.
Headnotes†
Prevention of Corruption Act, 1988 - ss. 7 and 13(1)(d) r/w
13(2) - Demand and acceptance of illegal gratification -
Prosecution case that the the appellant-Forest Section
Officer and the co-accused-Forest guard demanded and
accepted bribe from the complainant who operated a sawmill - Complaint filed by the complainant to the DySP, alleging
that the flying squad led by the appellant imposed a fine of
Rs.50,000/- on his saw mill in relation to the recovery of illegal
and unlicensed teakwood in the saw-mill - Next week, the
appellant and the Forest guard again demanded a monthly
amount of Rs.5,000/- to refrain from taking any further action
on the saw-mill - DySP organized the pre-trap proceedings,
wherein the appellant demanded and accepted the bribe
amount from the complainant - Conviction and sentence of the
appellant and the co-accused u/ss. 7 and 13(1)(d) r/w 13(2) by
the trial court - High Court acquitted the co-accused whereas
upheld the order as regards the appellant - Correctness:
Held: Grave suspicion on the prosecution case that the appellant
demanded the bribe money from the complainant - Prosecution
miserably failed to prove the factum of demand of bribe against the
appellant by reliable direct or circumstantial evidence - Allegation
regarding acceptance of bribe by the appellant is primarily based
* Author
[2024] 7 S.C.R.
641
Mir Mustafa Ali Hasmi v. The State of A.P.
on the evidence of the complainant, PW-2 and DySP whereas the
complainant and PW-2 being close friends, it can safely be assumed
that PW-2 was an interested witness - No satisfactory evidence
on record to establish that the appellant had actually handled
the tainted currency notes as claimed by the complainant - No
justification for the DySP to have straight away register the FIR
on the mere ipse dixit of the complainant and to have planned
the trap proceedings without the minimum endeavour to verify the
background facts leading to the alleged demand of bribe - Prudent
and unbiased police officer would be persuaded to make at least a
basic enquiry into these facts rather than following the dictat of the
complainant - Furthermore, PW-2 was the only witness associated
by the DySP to accompany the complainant for witnessing the
transaction of demand and acceptance of bribe - PW-2 was
kept as a shadow witness in the case - DySP did not make any
effort whatsoever to associate an independent person to act as a
shadow witness in the trap proceedings - Also call detail records
completely demolish the complainant's case - Manner in which the
worker in the saw mill was associated as a panch witness in the
trap proceedings, creates a grave doubt that the entire case was
orchestrated against the appellant at the instance of the worker -
Prosecution case full of embellishments contradicting and doubting
and thus, would not be safe to convict the appellant for having
demanded and accepted the bribe money from the complainant -
Prosecution failed to bring home the charges against the appellant
by leading evidence of an unimpeachable character - Appellant to
be acquitted of the charges - Impugned judgments quashed and
set aside. [Paras 48, 52-57]

## Text

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[2024] 7 S.C.R. 640 : 2024 INSC 503
Mir Mustafa Ali Hasmi
v.
The State of A.P.
(Criminal Appeal No. 2845 of 2024)
10 July 2024
[B.R. Gavai and Sandeep Mehta,* JJ.]
Issue for Consideration
The question arose whether the prosecution was able to prove
beyond all manner of doubt the fact that the appellant demanded
and accepted bribe from the complainant; and whether the courts
below were justified in convicting and sentencing the appellant for
offence punishable u/ss.7 and 13(1)(d) r/w 13(2) of the Prevention
of Corruption Act, 1988, for the demand and acceptance of illegal
gratification.
Headnotes†
Prevention of Corruption Act, 1988 - ss. 7 and 13(1)(d) r/w
13(2) - Demand and acceptance of illegal gratification -
Prosecution case that the the appellant-Forest Section
Officer and the co-accused-Forest guard demanded and
accepted bribe from the complainant who operated a sawmill - Complaint filed by the complainant to the DySP, alleging
that the flying squad led by the appellant imposed a fine of
Rs.50,000/- on his saw mill in relation to the recovery of illegal
and unlicensed teakwood in the saw-mill - Next week, the
appellant and the Forest guard again demanded a monthly
amount of Rs.5,000/- to refrain from taking any further action
on the saw-mill - DySP organized the pre-trap proceedings,
wherein the appellant demanded and accepted the bribe
amount from the complainant - Conviction and sentence of the
appellant and the co-accused u/ss. 7 and 13(1)(d) r/w 13(2) by
the trial court - High Court acquitted the co-accused whereas
upheld the order as regards the appellant - Correctness:
Held: Grave suspicion on the prosecution case that the appellant
demanded the bribe money from the complainant - Prosecution
miserably failed to prove the factum of demand of bribe against the
appellant by reliable direct or circumstantial evidence - Allegation
regarding acceptance of bribe by the appellant is primarily based
* Author
[2024] 7 S.C.R.
641
Mir Mustafa Ali Hasmi v. The State of A.P.
on the evidence of the complainant, PW-2 and DySP whereas the
complainant and PW-2 being close friends, it can safely be assumed
that PW-2 was an interested witness - No satisfactory evidence
on record to establish that the appellant had actually handled
the tainted currency notes as claimed by the complainant - No
justification for the DySP to have straight away register the FIR
on the mere ipse dixit of the complainant and to have planned
the trap proceedings without the minimum endeavour to verify the
background facts leading to the alleged demand of bribe - Prudent
and unbiased police officer would be persuaded to make at least a
basic enquiry into these facts rather than following the dictat of the
complainant - Furthermore, PW-2 was the only witness associated
by the DySP to accompany the complainant for witnessing the
transaction of demand and acceptance of bribe - PW-2 was
kept as a shadow witness in the case - DySP did not make any
effort whatsoever to associate an independent person to act as a
shadow witness in the trap proceedings - Also call detail records
completely demolish the complainant's case - Manner in which the
worker in the saw mill was associated as a panch witness in the
trap proceedings, creates a grave doubt that the entire case was
orchestrated against the appellant at the instance of the worker -
Prosecution case full of embellishments contradicting and doubting
and thus, would not be safe to convict the appellant for having
demanded and accepted the bribe money from the complainant -
Prosecution failed to bring home the charges against the appellant
by leading evidence of an unimpeachable character - Appellant to
be acquitted of the charges - Impugned judgments quashed and
set aside. [Paras 48, 52-57]
Case Law Cited
Neeraj Dutta v. State (Government of NCT of Delhi) [2023] 2
SCR 997 : (2023) 4 SCC 731 - referred to.
List of Acts
Prevention of Corruption Act, 1988; Code of Criminal Procedure,
1973.
List of Keywords
Demand and acceptance of bribe; Conviction and sentence for
offence punishable u/ss. 7 and 13(1)(d) r/w 13(2) of the PC Act,
1988; Pre-trap proceedings; Trap Laying Officer; Interested witness;
Tainted currency notes.
642
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Digital Supreme Court Reports
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.2845
of 2024
From the Judgment and Order dated 02.08.2022 of the High Court
for the State of Telangana at Hyderabad in CRLA No.1036 of 2008
Appearances for Parties
Dama Sheshadri Naidu, Sr. Adv., Hitesh Singh, Ms. Nisha, Ms. Tanvi
Munjal, Sunil Kumar Sharma, Advs. for the Appellant.
Kumar Vaibhav, Ms. Devina Sehgal, Advs. for the Respondent.
Judgment / Order of the Supreme Court
Judgment
Mehta, J.
1.
Leave granted.
2.
This appeal by special leave filed on behalf of the appellant lays
a challenge to the judgment dated 2nd August, 2022 passed by the
High Court of Telangana at Hyderabad in Criminal Appeal No.1036 of
2008, whereby the appeal preferred by the appellant was dismissed
and the judgement dated 5th August, 2008 passed by the learned
Additional Special Judge for SPE and ACB Cases, City Civil Court,
Hyderabad (hereinafter being referred to as 'trial Court') was affirmed.
By the said judgment, the appellant herein i.e., Accused Officer
No.1 (hereinafter being referred to as 'AO1') and Accused Officer
No.2 (hereinafter being referred to as 'AO2') were convicted and
sentenced as below:-
i)
Offence punishable under Section 7 of Prevention of Corruption
Act, 1988 (hereinafter being referred to as 'PC Act'): Rigorous
Imprisonment of one year and a fine of Rs.1,000/- each (in
default, simple imprisonment for three months)
ii)
Offence punishable under Section 13(1)(d) read with 13(2) of
PC Act: Rigorous Imprisonment of one year and a fine of Rs.
1,000/- each (in default, simple imprisonment for three months)
Both the sentences were ordered to run concurrently.
[2024] 7 S.C.R.
643
Mir Mustafa Ali Hasmi v. The State of A.P.
3.
In appeal, the High Court overturned the conviction of AO2 and
affirmed the conviction of the appellant (AO1) herein.
4.
The case of the prosecution in a nutshell is that the appellant (AO1)
being the Forest Section Officer and co-accused (AO2-N. Hanumanthu)
(since acquitted) being the Forest Guard were both part of the
Flying Squad of the Forest Department. On 6th January, 2003, the
appellant (AO1) and AO2 had gone to a saw-mill at Vanasthalipuram,
purportedly operated by the complainant Mukka Ramesh (hereinafter
being referred to as 'PW-1'), which was taken on lease in the name
of PW-1's wife from one Sri E. Ramachary. During their visit, the
appellant (AO1) and AO2 detected teakwood lying in the saw-mill. It
is alleged that both the accused (AO1 and AO2), threatened PW-1
that he would be booked in a case for the illegal and unlicensed
possession of teakwood in the saw-mill. It is further alleged that on
the plea of PW-1, the appellant (AO1) booked a case against one M.
Ashok, a worker in the saw-mill and not against PW-1 and thereafter,
a compounding fee of Rs.50,000/- was charged, by issuing a receipt
(Exhibit P-2) in the name of M. Ashok.
5.
It is further alleged that after their visit on 6th January, 2023, the appellant
(AO1) and AO2 started demanding mamool (monthly gratification) to
the tune of Rs.5,000/- from the PW-1 under a threat that they would
book a case against him and in that manner his business would be
ruined. Threatening calls were allegedly made to PW-1 on a regular
basis. On 21st January, 2003, AO2 called PW-1 and asked him to
keep the mamool money ready with further instruction that he would
make a call and give directions for delivery of the said bribe. On
22nd January, 2003, the appellant (AO1) called PW-1 and asked him
to reach Hotel Quality-Inn Residency, Nampally (hereinafter being
referred to as 'Hotel Quality-Inn'), on early morning of 23rd January,
2003 with the demanded mamool amount of Rs. 5,000/-. Disinclined
to pay the bribe, PW-1 lodged a complaint (Exhibit P-1) on 22nd
January, 2003 with Shri G. Ramachander, Deputy Superintendent
of Police, ACB (hereinafter being referred to as 'DySP')(PW-10) and
a crime report was registered thereupon. The trap was arranged on
23rd January, 2003. The complainant (PW-1), along with his friend
Potagunta Ramesh Naidu (hereinafter being referred to as 'PW-2')
reached the ACB office with the currency notes to the tune of Rs.5,000/-
being the bribe amount. Two independent witnesses, namely, Kathi
Srinivas Rao (PW-3) and Md. Mahmood Ali were summoned to act
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as mediators (panchas). At 9:45 am, the trap party conducted the pretrap proceedings which were recorded in the memorandum (Exhibit
P-4). After completing the pre-trap proceedings, the trap party, under
the leadership of DySP (PW-10) proceeded to the Hotel Quality-Inn
at 10:30 am. The complainant (PW-1) and PW-2 entered the Hotel
and met the appellant (AO1) in the coffee shop of the said Hotel. It is
further alleged that the complainant (PW-1) offered the bribe amount
to the appellant (AO1) at the coffee shop, who showed reluctance to
accept the same and asked them to follow him into the cellar of the
hotel. The DySP and the other trap party members followed them from
a distance. After reaching the cellar, the appellant (AO1) demanded and
accepted the bribe amount from the complainant (PW-1) and pushed
it down into the rexine bag which he was carrying. The prosecution
claims that the above sequence of events which transpired between
the appellant (AO1) and the complainant (PW-1) in presence of PW-2
was also visible to the trap party which was waiting in the hotel lobby,
however, they could not overhear the conversation.
6.
At about 11:25 am, PW-2 came out of the cellar and gave the prearranged signal upon which, the trap party proceeded towards the
appellant (AO1). The DySP (PW-10) questioned him about having
accepted the bribe amount. The complainant (PW-1) immediately
informed the DySP(PW-10) that the appellant (AO1) had demanded
and accepted the bribe amount of Rs.5,000/- from him and had placed
the same in a rexine bag. The hands of the appellant (AO1) were
rinsed in sodium carbonate solution. The wash of the fingers of his
right hand turned pink. The appellant (AO1), upon being questioned
about having accepted the bribe, stated with trepidation that he had
accepted the said amount towards compounding fee and opened
the rexine bag which he was carrying. The mediator, Kathi Srinivas
(PW-3) took out the currency notes from the rexine bag being held by
the appellant (AO1) and on verification, numbers of the notes tallied
with the numbers of the currency notes submitted by the complainant
(PW-1) at the time of the pre-trap proceedings. The bribe amount and
a diary along with the rexine bag held by the appellant (AO1) were
seized. The diary too was tested for presence of phenolphthalein
because it had also come into contact of the tainted currency notes
which was kept in the bag. A money-receipt book was also seized
(via memorandum (Exhibit P-6)). The post-trap proceedings were
recorded in the memorandum (Exhibit P-11).
[2024] 7 S.C.R.
645
Mir Mustafa Ali Hasmi v. The State of A.P.
7.
The prosecution sanction was procured and upon concluding the
investigation, charge sheet came to be filed against the appellant
(AO1) and AO2 in the Court of learned Additional Special Judge for
SPE and ACB Cases, City Civil Court, Hyderabad. The learned trial
Court framed charges against the appellant (AO1) and AO2 for the
offences punishable under Sections 7, 13(1)(d) read with Section
13(2) of the PC Act. They denied the charges and claimed trial. The
prosecution examined as many as 11 witnesses and exhibited 19
documents and 8 material objects in order to prove its case. The
accused (AO1 and AO2) upon being questioned under Section 313 of
the Code of Criminal Procedure, 1973 (hereinafter being referred as
'CrPC') and when confronted with the allegations as appearing in the
prosecution evidence, denied the same and claimed to be innocent.
8.
The appellant (AO1) categorically stated in his statement under
Section 313 CrPC, that while he and the complainant (PW-1) were
having coffee in the hotel, he inadvertently left his rexine bag behind
at the coffee shop. He conjectured that the complainant (PW-1)
might have planted the tainted currency notes in his rexine bag
without his knowledge because he was aggrieved by the fine of
Rs.50,000/- imposed upon M. Ashok (employee of the saw-mill) by
the appellant (AO1) earlier.
9.
Upon hearing the arguments of the learned defence counsel and
the learned Special Public Prosecutor and after evaluating the
evidence available on record, the trial Court proceeded to convict
and sentence the appellant (AO1) and AO2 as above vide judgment
dated 5th August, 2008.
10. The said judgment was assailed by both the accused by filing separate
appeals before the High Court of Telangana. The appeal preferred by
AO2 was accepted whereas, the appeal preferred by the appellant
(AO1) was rejected by judgment dated 2nd August, 2022 which is
subjected to challenge in this appeal by special leave.
Submissions on behalf of the appellant: -
11. Shri Dama Sheshadri Naidu, learned senior counsel representing
the appellant, vehemently and fervently contended that the entire
prosecution case is false and fabricated. No convincing evidence
was led by the prosecution to prove the factum of demand of bribe
by the AO1 (appellant). G.Ramachander (PW-10) DySP, who was
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also the Trap Laying Officer (hereinafter being referred to as 'TLO')
did not make any effort to get the factum of demand of bribe verified
by means of any independent or tangible evidence.
12. Shri Naidu submitted that the prosecution failed to prove that the
appellant (AO1) had ever demanded any bribe from the complainant
(PW-1) because neither did the TLO (PW-10) make any endeavour
to get the telephonic conversation between the complainant (PW-1)
and the appellant (AO1) recorded nor did he make any attempt to
place a recording device on the person of the complainant (PW-1)
during the trap proceeding so as to verify the factum of demand of
bribe. Furthermore, other than the interested witness i.e., PW-2,
no independent witness was directed by the TLO to overhear the
conversation which took place between the complainant (PW-1) and
the appellant (AO1) on the day of the trap.
13. Shri Naidu urged that even the allegation of acceptance of illegal
gratification by the appellant (AO1) is surrounded in a cloud of
dubiety. In order to buttress these submissions, Shri Naidu drew the
attention of the Court to the following admissions as appearing in
the cross-examination of the complainant, Mukka Ramesh (PW-1): -
"We ordered coffee took 1⁄2 an hour for servicing. I removed
the amount and about to give the amount to the AO. I did
not give it to his hand. The accused refused and asked
me to come downstairs. After ordering coffee the coffee
being served we 3 took coffee. The Accused No.1 started to
going out and we follow the accused at that time I kept the
amount in my pocket and while going out from coffee inn
the amount was with me. We have to get down the same
ramp by 50ft. We have to take turns After the accused 1
going out I found the bag of him in the hotel 1 picked it up
I handed over the bag to the accused 1 after crossing 2
tables in the hotel. A1 was going to since I paid the bill of
the hotel I was to little bit late to follow AO.1. We have to
again pass the ramp down the cellar by about 50ft. Where
there are two different stands for parking motor cycles
and four wheelers. The generators are situated near to
the parking stand of two wheelers. The accused came on
two wheeler I asked the accused 1 to show the papers.
He showed the papers to me. It is not true to suggest that
[2024] 7 S.C.R.
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Mir Mustafa Ali Hasmi v. The State of A.P.
after accused showing the papers to me I snatched them
and myself and Pw2 turned them and throw them away. It
is not true to suggest that I paid the money to the Accused
1 near the generator and the accused asked me to put it
in bag is false. It is not true to suggest I kept the tainted
amount in the rexyne bag which was left by the accused
before leaving coffee inn and I planted the currency notes
in the bag and handed over it to him and the accused has
no knowledge the tainted amount was in the rexyne bag.
It is not true to suggest that myself and Pw2 used our
influence to ACB to organize the false trap against Alas
AO.1 insisted of filing case against my wife, Manjula. It is
not true to suggest that the AO1 and 2 did not telephone
me and my statement is false."
(emphasis supplied)
14. Referring to the above admissions as appearing in the testimony of
the complainant (PW-1), Shri Naidu contended that it is clear that the
appellant (AO1) had forgotten his rexine bag in the coffee shop from
which the tainted currency notes were recovered later by the trap party,
and it was the complainant (PW-1) who handed over the same rexine
bag to the appellant (AO1). Shri Naidu urged that fuelled by ulterior
motive, the complainant (PW-1) misused this window of opportunity
to plant the tainted currency notes in the bag of the appellant (AO1).
15. Learned counsel also urged that the prosecution did not take any
steps to get the wash collected from the hands of the appellant
(AO1) during the trap proceedings, tested through the FSL and thus,
there is no corroborative evidence to show that the appellant (AO1)
had accepted or handled the tainted currency notes as alleged by
prosecution.
16. Shri Naidu further contended that the trial Court as well as the High
Court rendered the findings of guilt against the appellant (AO1)
merely on the basis of assumptions and presumptions drawn from
the tainted and vacillating deposition of the complainant (PW-1) and
PW-2, who was admittedly a close friend of the complainant (PW-1)
and thus, he can be categorized as being an interested witness.
17. Learned counsel also urged that the TLO (PW-10) was under
an obligation to send an independent shadow witness with the
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complainant (PW-1) and PW-2 to oversee and overhear the events
as they unfolded during the course of the transaction of demand
and acceptance of the bribe. Admittedly, neither the mediators nor
any other witness associated in the trap proceedings heard the
conversation which took place between the AO1 (appellant), the
complainant (PW-1) and PW-2, despite the positive case that they all
were sitting on the nearby table. It was the complainant (PW-1) who
voluntarily took his friend, PW-2, and got him associated during the
trap proceeding. As per Shri Naidu, this was a clear attempt by the
complainant (PW-1) in connivance with the TLO (PW-10) to create
evidence through a partisan witness acting and hence, the prosecution
is guilty of deliberately associating an interested witness so as to
fortify the alleged transaction of demand and acceptance of bribe.
18. Shri Naidu urged that the High Court cursorily brushed aside the
crucial admission as appearing in the cross-examination of the
complainant (PW-1)(reproduced supra) that the rexine bag of the
appellant (AO1) from which the tainted currency notes were recovered
had been handled by the complainant (PW-1), by observing that this
was an afterthought. As per Shri Naidu, the said vital admission was
spontaneously elicited during the cross-examination conducted from
the complainant (PW-1) and thus, it cannot be ignored as being an
afterthought. He contended that the prosecution consciously chose not
to re-examine the complainant (PW-1) on this aspect of his testimony
and thus, the defence cannot be denied to the benefit thereof.
19. Shri Naidu, further contended that no calls were made by the appellant
(AO1) to the complainant (PW-1) proximate to the date of the trap.
He drew the attention of the Court to the call detail records (CDR)
of the appellant (AO1) and the complainant (PW-1) and urged that
only two calls were exchanged between the appellant (AO1) and
the complainant (PW-1), one being on 8th January, 2003 and the
other on 17th January, 2003 and hence, the allegation made by the
complainant (PW-1) in the FIR and in his deposition, that the appellant
(AO1) called him on 21st January, 2003, 22nd January, 2003 and 23rd
January, 2003 in connection with demand of bribe is falsified, creating
a grave doubt on the veracity of the entire prosecution case.
20. Attention of the Court was also drawn to the pertinent admission
made by the complainant (PW-1) in his testimony that while they
were having coffee in the coffee shop of the Hotel Quality-Inn, he
[2024] 7 S.C.R.
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Mir Mustafa Ali Hasmi v. The State of A.P.
took out the bribe amount and offered it to the appellant (AO1)
who refused to accept the same. Shri Naidu thus, urged that it is
crystal clear that the prosecution miserably failed to prove that the
appellant (AO1) demanded or accepted any bribe amount from the
complainant (PW-1).
21. On these grounds, learned senior counsel appearing for the appellant
implored the Court to accept the appeal, set aside the impugned
judgments and direct acquittal of the appellant (AO1) from the charges.
Submission on behalf of the respondent-State: -
22. Per contra, learned standing counsel appearing for the State,
vehemently and fervently opposed the submissions advanced on
behalf of the appellant (AO1). He contended that the appellant (AO1)
being the Forest Section Officer firstly, imposed an unwarranted fine
amount of Rs.50,000/- on the saw-mill of the complainant (PW-1).
Thereafter, extending a threat of repeated action thereby harming
the business of the complainant (PW-1), the appellant (AO1),
demanded a monthly amount of Rs.5,000/- as bribe (mamool) from
the complainant (PW-1) which fact is duly corroborated from the
evidence of the complainant (PW-1) and PW-2.
23. He urged that at the time of preparation of the memorandum of the
post-trap proceedings (Exhibit P-11), the appellant (AO1) admitted that
he had received the amount from the complainant (PW-1), offering a
far-fetched explanation that the same was received as compounding
fee in a case whereas, no such case was pending. It was thus,
contended that this admission made by the appellant (AO1) can be
read against him. The subsequent plea set up by the appellant (AO1)
that the currency notes were planted by the complainant (PW-1)
himself in his rexine bag without his knowledge is unacceptable on
the face of record and that such frivolous defence plea was rightly
discarded by the trial Court and the High Court.
24. He further urged that the appellant (AO1), having failed to offer a
plausible explanation regarding the tainted currency notes found
from the rexine bag in his possession and so also to the presence of
phenolphthalein on the fingers of his right hand, was rightly convicted
by the trial Court and his conviction was justifiably affirmed by the
High Court. He thus, implored the Court to dismiss the appeal and
affirm the impugned judgments.
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Discussion and Conclusion: -
25. We have given our thoughtful consideration to the submissions
advanced at bar and have perused the impugned judgments. With
the assistance of learned counsel for the parties, we have thoroughly
examined the evidence available on record.
26. Since fervent arguments were raised on behalf of the parties on
the aspect of demand of bribe, it would be useful to recapitulate
the relevant position of law on the use of circumstantial evidence to
prove demand of illegal gratification.
27. A Constitution Bench of this Court in the case of Neeraj Dutta v.
State (Government of NCT of Delhi),1 was called upon to answer a
reference on the question as to whether the circumstantial evidence
can be relied upon to prove the demand of illegal gratification and
whether in the absence of evidence of the complainant direct/primary,
oral or documentary, would it be permissible to draw an inferential
deduction of culpability/guilt of a public servant under Sections 7 and
13(1)(d) read with Section 13(2) of the Act based on other evidence
adduced by the prosecution. This Constitution Bench traversed
the entire history of the judicial pronouncements on the issue and
held as below: -
"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.
1
[2023] 2 SCR 997 : (2023) 4 SCC 731
[2024] 7 S.C.R.
651
Mir Mustafa Ali Hasmi v. The State of A.P.
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
bribe-giver and in turn there is a payment made
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which 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."
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653
Mir Mustafa Ali Hasmi v. The State of A.P.
28. Thus, in addition to answering the primary issue raised in the matter,
the Constitution Bench also went on to hold that in order to bring
home the guilt of the accused, the prosecution has to prove the
demand of illegal gratification and the subsequent acceptance, by
either direct or circumstantial evidence.
29. Keeping in view the ratio of the above mentioned decision of the
Constitution Bench, we now proceed to discuss the evidence available
on record so as to find out whether the prosecution has been able to
prove beyond all manner of doubt the fact that the appellant (AO1)
demanded and accepted bribe from the complainant (PW-1).
30. First and foremost, we may note that the first allegation of demand
as emanating from the prosecution case is reflected from the
complaint (Exhibit P-1) submitted by the complainant (PW-1) to the
DySP, ACB Department, Hyderabad Range on 22nd January, 2003,
alleging inter alia that a fine of Rs.50,000/- had been imposed on his
saw mill by the flying squad led by the appellant (AO1) in relation
to the recovery of illegal and unlicensed teakwood in the saw-mill.
After a week of this event, the appellant (AO1) and the Forest guard
(AO2) again came to the saw-mill and demanded a monthly amount
(mamool) of Rs.5,000/- to refrain from taking any further action on
the saw-mill. Thus the allegation of demand as emanating from the
complaint (Exhibit P-1) is common to both the appellant (AO1) as well
as the co-accused (AO2) who stands acquitted by the High Court.
The complaint (Exhibit P-1) was lodged on 22nd January, 2003. The
DySP (PW-10) organized the pre-trap proceedings, on the next day
i.e. on 23rd January 2003 without making any attempt to verify the
allegation of demand of bribe levelled against the appellant (AO1)
by the complainant (PW-1) in the complaint (Exhibit P-1).
31. It is the settled convention in such cases that the Trap Laying
Officer, makes efforts to verify the factum of demand of bribe by the
public servant before initiating the trap proceedings. The factum of
demand of bribe can also be verified by recording the telephonic
conversation between the decoy and the suspect public servant.
Often, a recording device is secretly placed on the person of the
decoy to record the conversation which would transpire during the
course of acceptance of bribe by the public servant. However, no
such steps were taken by the DySP (PW-10), who straight away
organized the trap without making any effort whatsoever to verify the
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factum of demand attributed to the appellant (AO1) and AO2. It is
relevant to mention here that PW-2 was the only witness associated
by the DySP/TLO (PW-10) to accompany the complainant (PW-1)
for witnessing the transaction of demand and acceptance of bribe.
Evidently thus, PW-2 was kept as a shadow witness in the case.
During the course of trial, the complainant (PW-1) and PW-2 both
admitted that they were close friends. The complainant (PW-1) and
PW-2 being close friends, it can safely be assumed that PW-2 was an
interested witness. Hence, it is also manifested that TLO/DySP (PW10) did not make any effort whatsoever to associate an independent
person to act as a shadow witness in the trap proceedings. It is
recorded in the memorandum of the pre-trap proceedings (Exhibit
P-4) that it was the DySP (PW-10) who summoned the PW-2 and
asked him to act as a shadow witness to oversee and overhear the
transaction of acceptance of illegal gratification. However, this fact
is totally contradicted by the version as set out in the evidence of
the complainant (PW-1) and PW-2. Both categorically stated that
it was the complainant (PW-1) who asked PW-2 to accompany
him during the trap proceedings scheduled to take place on the
morning of 23rd January, 2003. In normal course, before proceeding
to the stage of trap, it was incumbent upon the DySP (PW-10) to
get an independent verification done of the alleged demand which
fact assumes prominence considering the circumstance that the
accompanying shadow witness, Ramesh Naidu (PW-2) is a close
friend of the complainant (PW-1) who himself bore a grudge against
the appellant (AO1) on account of the fine of Rs. 50,000/- imposed
on the saw-mill.
32. Now, we shall proceed to discuss the evidence of the material
prosecution witnesses.
33. The complainant (PW-1), stated in examination-in-chief that he had
taken a premises on lease from E. Ramachary in the name of his
wife and was running a saw-mill and timber depot thereupon. On 6th
January, 2003, the Flying Squad of the Forest Department comprising
of Mir Mustafa, Forest Section Officer (appellant herein) (AO1) and
N. Hanumanthu, Forest Guard (AO2) along with three other staff
members came to his saw-mill and conducted an inspection. They
allegedly found teakwood stored in the saw-mill without any licence
etc. and thus a case was booked against the complainant (PW-1)
[2024] 7 S.C.R.
655
Mir Mustafa Ali Hasmi v. The State of A.P.
who disputed that no teakwood was found in his mill. After booking
the case, the appellant (AO1) and AO2 imposed a fine of Rs.50,000/-
but the fine receipt was issued in the name of an employee of the
saw mill named M. Ashok. After 7 or 10 days, AO1 and AO2 again
came to his saw-mill and demanded a monthly payment (mamool)
of Rs.5,000/- threatening that if the amount was not paid, they would
book repeated cases against him and dismantle his business. On
21st February, 2003, AO1 and AO2 rang up the complainant (PW-1)
and demanded a bribe of Rs.5,000/- . AO2 also frequently called the
complainant (PW-1) over mobile and harassed him in relation to the
demand of Rs.5,000/-. Being perturbed by these persistent demands,
the complainant (PW-1) went to the ACB Office on 22nd January, 2003
and submitted a complaint (Exhibit P-1) to the DySP (PW-10). The
complainant (PW-1) was instructed by the DySP (PW-10) to come to
the ACB office on 23rd January, 2003 along with the bribe amount of
Rs.5,000/- which he intended to pay for getting the appellant (AO1)
and AO2 trapped. On the same day, i.e. on 22nd January, 2003 in
the evening, the complainant (PW-1) informed his friend Ramesh
Naidu (PW-2) about lodging of the complaint and requested him to
accompany him to the ACB office on the next day. The complainant
(PW-1) alleged that in the morning of 23rd March, 2003, he received
another phone call from the appellant (AO1) and AO2 and he was
directed to come to the Quality-Inn Residency Hotel, Nampally
along with the bribe amount of Rs.5,000/-. The complainant (PW-1)
agreed and thereafter, he proceeded to the ACB office where PW-2
was already waiting for him. The DySP (PW-10), his staff along with
mediators assembled in the ACB office. The DySP (PW-10) introduced
the complainant (PW-1) to the mediators; pre-trap proceedings were
undertaken; the mediators verified the currency notes presented by
the complainant (PW-1) and noted the denomination and the serial
numbers thereof in the pre-trap panchnama (Exhibit P-4). A white
powder was applied to the currency notes. The DySP (PW-10)
then requested PW-2 to act as an accompanying witness (shadow
witness). He told the complainant(PW-1) and PW-2 to proceed to the
Hotel Quality-Inn for paying the bribe amount to the appellant (AO1)
and AO2 on their further demand and even otherwise. PW-2 was
instructed to watch the sequence of events which would transpire
between the complainant (PW-1) and the two accused (AO1 and
AO2) and after transfer of the bribe amount, to give the pre-arranged
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signal by wiping his hand with the handkerchief. The procedure of
use of phenolphthalein powder was demonstrated in presence of
the complainant (PW-1). After that, the complainant (PW-1) and
PW-2 proceeded to the Hotel Quality-Inn and the DySP (PW-10)
and other trap party members followed them from a distance. The
complainant (PW-1) and PW-2 reached the Hotel Quality-Inn at
about 10:30 am. The complainant (PW-1) parked his vehicle in
the cellar of the hotel and then he, along with PW-2 went into the
coffee shop and occupied a table. The mediators and Inspector,
N. Chandrashekar (PW-11) also came into the shop and occupied
a nearby table. The DySP (PW-10) and other staff members kept
vigil at the entry gate of the coffee shop. While they were waiting,
the appellant (AO1) came to the complainant's table and occupied
the chair opposite to the one on which the complainant (PW-1) and
PW-2 were sitting. The appellant (AO1) enquired whether he had
brought the demanded amount; to which the complainant (PW-1)
answered in affirmative. While the complainant (PW-1) was about to
pass on the tainted currency notes to the appellant (AO1), he showed
reluctance and suggested that the amount should not be given in the
hotel and directed the complainant (PW-1) to proceed to the cellar.
Accordingly, the complainant (PW-1), PW-2 and the appellant (AO1)
proceeded to the cellar and reached near the generator room. There,
the appellant (AO1) opened the zip of his rexine bag and asked the
complainant (PW-1) to put the money in that bag. In conformance,
the complainant (PW-1) took the tainted currency notes from his left
side shirt pocket and placed the same in the bag of the appellant
(AO1) wherein, some book and papers were lying. The appellant
(AO1) pushed down the currency notes with his right hand, handed
some papers to the complainant (PW-1) and closed the zip of the
bag. The appellant (AO1) asked the complainant (PW-1) to tear the
said papers, who complied and torn the papers. In the meanwhile,
PW-2 left them and proceeded outside. In a short while, the DySP
(PW-10) and the trap party rushed down into the cellar and disclosed
their identity to AO1 (appellant). The DySP (PW-10), then asked the
complaint (PW-1) to narrate the intervening sequence of events. The
version as given out by the complainant (PW-1) was incorporated
by the mediators in the post-trap memo (Exhibit P-11). The version
of PW-2 was also noted down by the mediators in the same memo.
The panchnama was drawn in a lounge on the second floor of the
[2024] 7 S.C.R.
657
Mir Mustafa Ali Hasmi v. The State of A.P.
hotel. The trap party stayed at the hotel till 5:00 pm. The complainant
(PW-1) and PW-2 were called to the ACB office and their statements
were recorded. Later on, Section 164 CrPC statements of both the
complainant (PW-1) and PW-2 were also recorded. In his statement,
the complainant (PW-1) stated that the torn papers, upon which the
appellant (AO1) had taken his signatures during the very first raid
i.e. on 6th January, 2003, were handed over to the DySP (PW-10)
at the time of drawing the post trap memo.
34. In cross examination, the complainant (PW-1) stated that he was
not aware that one M. Ashok of Vanasthalipuram was running the
saw-mill and that the same M.