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Criminal Appeal No. 366 of 1954, decided on 20th January 1956.
‑Defence version false‑Prosecution story not therefore necessarily true‑Burden on prosecution to prove their case.
Because the defence version is false, it does not follow that the prosecution version is true. Burden never shifts from the prosecution to prove the guilt of an accused person.
, S. 383‑Threat of criminal charge and of wrongful confinement held out by Police‑ Money received by police as result of threat‑Money, however, made the basis of a charge of offering bribe to police‑‑‑ Extortion.
Money obtained by police by threat of a criminal charge and of wrongful confinement amounts to the offence of extortion under section 383 P. P. C. though the money was not brought to their own use but was employed in bolstering up a charge of offering bribe to police, the stratagem having been used to prove their honesty to their superior (Officers.
7 W R Cr. 28, 14 Cr. L J 413 and 27 C 925 ref.
‑Sending police officers to commit an offence in order to trap other offenders‑Police officer committing such offence not protected from prosecution for same‑Asking Magis trates to accompany police to witness such traps‑Condemned.
Held, that the practice of taking Magistrates or other judicial officers on expeditions or missions of laying traps for offenders giving bribes has been condemned by the highest Courts.
In this case the Police Inspector admitted both in his F. I. R. and in his evidence on oath that he had agreed to accept the bribe but he alleged that he did so in order that the offence of the appellant viz. that of giving bribe may be detected Held, that the police Inspector was guilty of offence tinder section 161 P. P. C.
Nazir Ahmad v. King Emperor A I R 1936 P C 253 at 258, M. C. Mitra v. State A I R 1951 Cal. 524, Rao Shiv Bahadur Singh and another v. State of Vindh‑P, A I R 1954 S C 322 and Brannan v. Peek 1947 Vol. 2 All. Eng. L R 572 at 573 ref.
Tufail Ali for Appellant.
Nasiruddin for the Crown.
‑The appellant Mirzazada alias Mirzoff has been convicted by the Special Judge, Karachi under section 165‑A or in the alternative under section 161 read with section 116 P. P. C. and sentenced to pay a fine of Rs. 1,000 in default R. I. for nine months. He has come in appeal.
Along with the appellant one Alushah had also been jointly tried for the same offence but he was acquitted by the learned Judge.
The charge against both the accused persons was that they had offered a bribe of Rs. 30,000 to Inspector Siddiqi of the Enforcement Police. The learned judge, while sentencing the appellant, remarked as follows :‑
"He had already suffered a tremendous loss and I do not think that it would be fair to send him to jail. He is a businessman and comes from a minority community. The amount of bribe Rs. 30,000 is confiscated and it will be credited to Government. This would be an additional loss to the accused".
The facts of this case must now be stated :‑
The appellant and Alushah are Jews of Afghanistan. They are businessmen. Ruknuddin is the S. I. P. S. H. Siddiqi is the Inspector while A. Qudus is the Dy. S. P. of Enforcement Police.
On 12th September 1953, Qudus, Dy. S. P. instructed Inspector Siddiqi to run up to the railway station, Karachi and seize the artificial silk yarn of Alushah. This was done on 14th September 1953, the yarn was seized and Alushah and his father were arrested. Alushah was put in the City Police Lock‑up. He was not allowed to meet his relations, friends or advocates. A case of black‑marketing was registered against him and his father by S. I. Rukunddin. Alushah is alleged to have offered a bribe of Rs. 50,000 to Ruknuddin, who, informed Qudus about it.
On 18th September 1.953, the business‑premises of the appellant Mirzazada were searched, his goods seized therefrom and his books of account, registers etc. taken possession of. The appellant requested Inspector Siddiqi to show favour to him as well as to Alushah and his father in the cases pending against them. He offered to pay him Rs. 25,000 on his own behalf and Rs_ 1,15,000 on behalf of Alushah and his father. This talk took place on 18th September 1953. On the 19th also the appellant met Inspector Siddiqi and again requested him for favour in consideration of the promised bribe. On that day he further requested Siddiqi to call Alushah so that he should talk to him in his presence. Siddiqi promised to bring them together on 21st September 1953.
On the 21st Siddiqi called Alushah from the lock‑up to the Enforcement Office where the appellant talked with him. Eventually both of them offered Siddiqi a bribe of Rs. 1,40,000 in all. The appellant promised to bring the first instalment of Rs. 75,000 that evening. Siddiqi agreed to accept this bribe and informed Qudus about it. Qudus asked Siddiqi to contact the Special Police Enforcement. Accordingly Siddiqi lodged his F. I. R. on 21st September 1953 at 3‑30 p.m. with Mr. Moizuddin, Dy. S. P., S. P. E. This F. I. R. reads as under :‑
"I am working as Inspector in Enforcement Police, Karachi since November 1952. During the investigation of crime No. 131J1953 under section 3 of Hoarding and Black Marketing Act, 1948 the Enforcement Police, Karachi had arrested Alu Shah and his father M. A. Samuel Afghan Jews of Karachi during the last week. One Amune Mirzzof alias A. Mirzazada had been approaching me to accept bribe and drop the case against both the accused and also not to take any action against him (A. Mirzazada). I informed Mr. Abdul Qudus, Dy. S. P. Enforcement on 18th September 1953 and a trap was being arranged with the help of S. P. E. Mr. A. Mirzazada has in consultation with accused Alu Shah offered a bribe of Rs. 1,40,000 for showing favour to them. He has, however, desired that the amount of bribe be accepted in two instalments. I have agreed to his proposal and Mr. A. Mirzazada would pay the first instalment of about Rs. 75,000 to me this evening in the Enforcement Office. I therefore, lodge this complaint for necessary action".
I informed Mr. Abdul Qudus Dy.S.P. Enforcement on 18th September 1953 and a trap was being arranged with the help of S.P.E. Mr. A. Mirzadada has in consultation with accused Alu Shah offered a bride of Rs. 1,40,000 for showing favour to them. He has however desired that the amount of bride be accepted in two instalments. I have agreed to his proposal and Mr. A. Mirzada would pay the first instalments of about Rs.75,000 to me this evening in the Enforcement Office. I therefore lodge this complaint for necessary action.
In consequence of this F. I. R., a trap was laid. Siddiqi remained in the office at 6. p.m. A little thereafter Mt. Moizuddin came there and inspected the premises. He widened the chink in the partition wall. Then he left and again returned at 6‑30 p.m. with D. S. P. Ghulam Mohiyuddin and Mr. M. A. Naqvi the Magistrate. They waited in the adjoining room. The appellant came at 8 p.m. but without money. He had not been able to arrange for it. The meeting was therefore fixed for the next day.
The appellant came again at 11‑30 a.m. the next day i.e. 22nd September 1953. Siddiqi asked him to come in the evening. The police party and the Magistrate came there at 6‑30 p.m. The appellant came there. Alushah was also called from the lock‑up. He was in handcuffs. Both of them expressed their inability to pay Rs. 1,40,000. They reduced it to Rs. 1,10,000. They offered to pay Rs. 30,000 instead of Rs. 75,000 as the first instalment. Siddiqi agreed to take the amount. The appellant left the office on his motor cycle to bring the money. In the office room, there were the appellant, Alushah, Siddiqi and S. I. P. Ruknuddin. In the adjoining room were the officers of the S. P. E. and the Magistrate. The appellant returned after half an hour with three bundles of currency notes of Rs. 10,000 each in a cardboard box. The appellant took out the notes from the box and handed them over to Siddiqi, who started counting the notes. He finished the two bundles and was counting the third one, when the police party and the Magistrate fell upon them. The notes were seized and requisite formalities carried out. Even the motor‑cycle of the appellant was seized.
Subsequently a photographer was called and the photos of the two accused and the police officers were taken. News was flashed in the newspapers and wide publicity was given to this incident. Exh.18‑A is the article from "Evening Star". It reads as follows
"Jews from Bombay
Among arrested.
Rs. 7lakhs worth Goods seized
Star Report.
Seven lakhs of rupees worth of goods belonging to the Firm of Messrs. M. A. Samuel & Co., Karachi, were recovered yesterday by the Enforcement Police from seven godowns in, the City. The goods seized consisted mainly of Cotton Yarn and Silk Yarn.
The Police also arrested Muza of alias Mirzazada, a Jew from Bombay, and Alushah Samuel last evening who are alleged to have attempted to bribe the police from making any further investigations in the case.
It was alleged that the accused offered Rs. 1,40,000 to D. S. P. Abdul Qudus, P. I. Shamsul Haq and S. I. Rukunddin Shah. A trap was laid last evening and when the accused came with Rs. 30,000 as the first instalment of bribe, they were arrested in the presence of the Magistrate.
Papers seized-----
Papers seized from the office of the Firm in New Cloth Market are understood to have revealed that the firm was in contact with the "Israeli Government" through some persons in Bombay. The police further estimate that the firm had illegally acquired goods worth about one and a half crores of rupees.
The police have also found evidence to prove that the firm illegally dealt in foreign exchange. Certain Pakistani firms are alleged to be implicated. It was reliably learnt that some more arrests are imminent. Mr. Samuel was arrested by the police recently and is now in Jinnah Central Hospital under Police custody.
The modus operandi of the firm was that they booked orders for certain firms in Afghanistan, paid the Customs duty for the goods at Karachi and took delivery of the goods. Here they took out the goods, mostly yarn, from the cases and substituted some cheap material instead. This was then forwarded to Afghanistan. When the cases passed the land Customs the duty paid in Karachi was refunded to the firm under the rules".
Exhibit 17‑B is the extract from another paper "Watan Gujrati" dated 24th September 1953. It published two photographs. This reads as follows :‑
"Businessman arrested on the charges of evading Rs. 1 Crore of Excise Income‑tax.
Common policemen have made a shining and proud addition to the police history of Karachi. The police chiefs instead of putting the huge amount of Rs. 1,40,000 in their pockets, showed the concrete example of their sincerity, honesty and bribery activities by exposing persons who were depriving the Pakistan Government of Lakhs of rupees.
Detailed report of this appeared first in Vatan which gave a terrible shock to the public and prompted the police in carrying out their duty.
In the last five years, by importing goods in transit to Afghanistan worth of crores of rupees into Pakistan and evading the Excise due thereon, one indigenous international business house was caught by the Sub‑Inspector Ruknuddin of the Police information department. After raiding various godowns and confiscating goods worth lakhs of rupees, crown offices and godowns were sealed. Moreover, an offer for a bribe of Rs. 1,40,000 was made known to the high police chiefs, who on the contrary planned a plot and got the culprits arrested in the presence of the Magistrate, Mr. Naqvi, while passing over the first instalment of Rs. 30,000 in a shoe box.
The full details of this case were given in "Vatan" on the front page for several days. Today "Vatan" presents through its special photographer photos of the persons conducting the case and of the culprits. "Vatan" knows from authoritative sources that several memon persons have been arrested at the commencement of this case, and the Special Police intend starting a case against prominent businessmen of the City in the initial stages for manipulating in dollar exchange. It is understood that some more arrests are likely in the near future. Enforcement Police Deputy Superin tendent. Abdul Qudus and S, I. Ruknuddin Shah inspecting the seized papers and documents of Ali Shah Samuel and Mirzoeff (Mirzazada) and the inquiry is in progress.
One crore Customs Excise evading accused been arrested sitting at the table from left to right, Ali Shah and Mirzoeff (Mirzazada) their hands are in handcuffs and hiding their hands under the table. Standing : Left to right Mr. Ruknuddin Shah S. I. Mr. Abdul Qudus, Deputy Superintendent of Police, B. A. L. B. and Inspector Shamsul Haq Siddiqi who are investigating the full case of the accused and the accused Ali Shah who offered the bribe of Rs. 1,40,000 to them".
After requisite investigation was over, the appellant and Alushah were sent up to stand their trial for the offence of offering bribe to the Enforcement Police.
At this stage, it is extremely important to note that Alushah and his father were ultimately not challaned for the substantive offence of hoarding or black‑marketing, though they were put behind the bars and their goods were seized. Nothing incriminating was also found against the appellant and his. goods etc. were ultimately released on 23rd December1953.
In his statement under section 342 Criminal Pa C. the appellant stated as follows :
"Alu Shah had requested me to arrange for Rs. 30,000 as cash security for his release on bail. I told Shamsul Haq, Alu Shah and Ruknuddin that I could manage only Rs. 25,000 but I could take a loan of Rs. 5,000 from a friend of, mine. I took the money in good faith to the Enforcement Office. I have nothing more to add. I file written statement:
Alu Shah also denied his guilt and alleged that the appellant had told him that he was arranging for his bail by giving cash security.
The payment of Rs: 30,000 being thus admitted, the learned Judge disbelieved the defence version that the amount was intended as a cash security for bail and in this connection he remarked as follows :‑
"As it is admitted that the accused Mirzazada had taken the amount to that office, it is not necessary to discuss all the evidence on this point. The question is, whether this sum of Rs. 30,000 was a bribe offered to Siddiqi or was a cash security for the bail of Alu Shah I have carefully read the evidence and have come to the conclusion that it was an offer of bribe. According to the evidence of Sajjad Hussain, Exh. 8, a clerk of Mr. Ali Jawad, A. C. M. Karachi, a bail application of the accused Alu Shah, was made on 18th September 1953, which was refused on 22nd September. This application is Exh. 8‑C. On 17th September, advocate for Alu Shah made an application alleging therein that the accused had been beaten by the police. Exh.8‑B is the order of the Magistrate, passed on 18th September. On 21st September the accused Alu Shah was remanded to police custody till 27th September. On 22nd September the bail application was rejected and there could be no ground for their belief, that when the Magistrate had refused the bail the police could release him on cash security. This defence is, therefore, absolutely false".
The learned Judge, however, acquitted Alu Shah on the charge of offering bribe, and his observations on this point are as follows :‑
"The position of the accused Alu Shah is different from Mirzazada. He was in custody, from 14th September and was with the police in their lock‑up till 27th September. He could not meet his relations, friends and advocate. He was not free to move about. He had no access to his money. He had not gone to the office of the Enforcement Police of his own accord. He was taken under compulsion and in a disgraceful condition, viz. in handcuffs. His presence at the scene of offence would not make him liable. He did not bring the money nor did he pay it to Shamsul Haq Siddiqi. The learned Prosecuting Inspector for the Special Police frankly admitted that the case against Alu Shah is not strong but rather weak. I agree with him and acquit the accused Alu Shah".
The only question involved in this case is whether the appellant offered a bribe of Rs. 30,000 to Inspector Siddiqi in the circumstances alleged by the prosecution. I have heard the learned advocate for the appellant and the learned Public Prosecutor. I have carefully gone through the entire record of evidence and after giving my most anxious con sideration to the fact's of this case, I have reached the conclusion that this was a case of extortion committed by the Enforcement Police for ulterior motives, and it was not a case of bribery. I have also no doubt that the learned Judge was right in holding that the amount of Rs. 30,000 was not meant to be a cash security for purposes of bail as alleged by the defence. But because the defence version is false, it does not follow that the prosecution version is true. R Burden never shifts from the prosecution to prove the guilt of an accused person. The accused may say anything he likes ; he is entitled by law to speak a lie. The burden always lies on the prosecution to prove the truth of their case. There are the clearest possible indications here to show that the two unfortunate victims of this case were intentionally and deliberately put in fear of injury and were harassed, dis graced and coerced for a number of days to pay the money in order to purchase the liberty of their person and the release of their goods which were wrongfully seized. The object of the Enforcement Police in so doing was to show to the world in general and their superiors in particular that they were honest and incorruptible people and that all talks about their dishonesty and corruption were mean gossip. If this was not their design I fail to understand why a photographer was called and why the pictures were published in the newspapers. After all they had only done their duty, for which they were being paid by the Govern ment. What was the object of this publicity then
In this connection it will be necessary for me to reproduce some important passages from the depositions of these officers of the Enforcement Police. I will first take up Mr. A. Qudus, Dy. S. P. He states as follows :‑--
"It was 18th or 19th of September 1953, when Shamsul Haq Siddiqi informed me that the accused had offered the bribe. On 12th September I had ordered Siddiqi and Ruknuddin to go to the Railway Station to seize packages of yarn belonging to Alu Shah. Alu Shah was arrested on 14th September under my orders. The account books of Alu Shah were seized and shown to me . . . . . . .I had told Shamsul Haq Siddiqi that it would be nice if the accused are to be trapped . . . . . Siddiqi told me the bribe was offered for all the departments, including myself, my subordinates, Customs. Income‑tax and the Special Police . . . . . . There was no evidence whatsoever against the accused Mirzazada when he offered the bribe to get his own goods released and also to help Alu Shah. The photographs were taken on 23rd September 1953, and the accused Alu Shah and Mirzazada were both present at that time in my office. Alu Shah had been sent for from the police lock‑up . . . . . . and I consented to be photographed with them for the newspapers . . . , . I am under suspension. It was on the complaint of one Hussain Cochinwala. He alleged that I had demanded a bribe of Rs. 5,000 from him . . . I have written to the authorities that I did good work in this case and yet I was suspended . . . . . . There is no allegation against me that I had deposited Rs. 50,000 with H. K. Dada My son is studying in England. I send him pound 58 a month. I was getting Rs. 578 including all allowances. I maintain a car. It cost me about Rs. 150. My wife had brought about Rs, 75,000 from Bharat. She never had a bank account in Ajmer or in Pakistan. My first wife left me Rs. 10,000 and her son is now in England. The second wife left me Rs. 8,000 and the third has brought me Rs. 75,000. This last amount includes my savings also. I opened a bank account in Karachi but never had more than Rs. 7,000. The larger sums I kept in my house. My second son is not studying in England, but he will be going. I had gone to England for a surgical operation. I deposited Rs. 10,000 with a friend of mine in Karachi so that in case I die he may send monthly allowance to my son in England. I know Mrs. Kabir. I had not asked her to go to Alu Shah's sister for giving me bribe. Mes: Kabir had asked me to introduce some men to her who could stay in her house during her absence. She was going to England. Alu Shah was my neighbour for a short time. It is not a fact that I found some names in the account books of Alu Shah and I sent for them individually and told them if they did not pay me bribe I would arrest them and send them upto Court. I cannot say if the name of the accused Mirzazada transpired in the books of Alu Shah, and I called him. I had told the Inspector and S. I. that Mirzazada is connected with Alu Shah and his godown therefore be seized. It was under my instruc tions that the godown was seized. It is true that I was in my office on 18th September but not that I had sent for the two accused for extorting money from them. I do not know if Alu Shah was brought to my office from the lock‑up on 18th September . . . . , In December 1953, Hussain Cochinwala made a complaint of bribe against me. It is not true that I sent Mrs. Kabir to the mother of Alu Shah with a message that unless she paid Rs. 2 lacs, her husband and her son would die in jail . . . . . It is not true that this trap and the publicity was intentionally made to show my officers that I was an honest man. I had not told Siddiqi that it would be useful if this trap was successful . . . . My wife purchased two houses in Pir Colony and I get Rs. 115 as rent. The father of my wife of Agra was a Sub‑Assistant Surgeon. He left one building with 10 flats, 16 godowns and 6 shops. She used to get Rs. 237 as rent for all the property. I was then getting Rs. 400 with all allowances. My wife had a mother, a brother and a sister . . . . . , I had no bank account in Bharat. Mrs. Kabir was complainant in a case of .trespass. I was in charge of that case as D. S. P. prosecution. It has come to me for final disposal and opinion whether it would succeed in Court of law. I did not send for her but she came to me. I did not put her any questions. I sent up the case to Court. The matter was compromised. I met her twice again after the case. She rang me up and consulted me if I could ask some one to occupy her house. I have never met Mr. Kabir. The second time I went to Mrs. Kabir's house to inquire about her health as she was not well. She had fever. My wife never went to her place. I alone used to go to her".
Then I go to Inspector Siddiqi. He states as follows :‑
"The transaction did not take place on 21st as the amount of bribe could not be arranged. I allowed Mirzazada to go back . . . . The two accused had on 21st offered to bribe me with Rs. 1,40,000, but on 22nd both of them said that they would not be able to arrange the entire amount, so they reduced Rs. 1,40,000 to Rs. 1 10,000. They offered to pay me Rs. 30,000 as first instalment. 1 agreed to take the amount. Mirzazada then left the office to bring the money . . . . . . Mirzazada was not accused of any charge in any case before the present incident : . . . . .I know Mr. Qudus who was ' my officer. We have no enmity with each other. He is now under suspension. In September 1953, an inquiry was pending against him. Qudus never asked me to implicate the accused so that he may get credit. I told him that the accused had offered me bribe. He replied ;‑
(If they are giving a bribe it will bring us some good if they are trapped) . . . . . I might have said in my police state ment that I met Qudus on 15th when he inquired from me about the bribe which was offered to the S. I. and not to me. He then said it will be useful to arrange a trap .
All the goods of Mirzazada were released by the police as he is not connected with any blackmarketing case. I do not know if the father of the accused Alu Shah was released from the look‑up under the orders of Government to attend the synagogue for that festival . . . . . . Mirzazada and Alu Shah met each other in my office on 21st at 11 or 11‑30 a: m. I had arranged the meeting. Alu Shah asked Mirzazada to pay me Rs. 75,000 as the first instalment of the bribe . . . . . Alu Shah was in City lock‑up from 14th to 23rd September. I saw him with Ruknuddin on 2 or 3 occasions in the Enforcement Office. Sometimes he was in handcuffs. I sent for him on 21st. It is not a fact that Alu Shah was tortured to make a confession. Only Mirzazada interviewed Alu Shah in my presence .
On 22nd September Alu‑Shah was brought by Ruknuddin under the orders of the Dy. S. P."
S. I. P. Ruknuddin states as follows :‑
"Mr. Abdul Qudus the then Dy. S. P. was supervising the whole investigation. He is now under suspension. I do not know why. I know that photographers were present in the Enforcement Office and that photographs were taken, but I do not know if Qudus had sent for the photographers . . . .. . Two godowns of Alu Shah were searched by me. I also secured goods from his other godowns. All the goods of Alu Shah were worth about Rs.6 lacs. On 18th September I searched the godowns of Mirzazada as his name appeared as Alu Shah's friend and associate. It was on 18th and other dates, but I did not find anything or any fact incriminating . . . . . 80 bales of Mirzazada worth about Rs. 2,40,000 were detained by me on 16th September 1953".
It will be clearly seen from all this evidence that the investigation in these cases was not being conducted by angels as they purport to be. In September 1953, an inquiry was pending against Mr. Qudus. He was under a cloud then and he was subsequently suspended in spite of his meritorious services in this case. He has a grievance that even though he did not care for Rs. 30,000 bribe, the Government had to suspend' him on the allegation of Hussain Cochinwalla that he got a petty sum of Rs. 5,000 only as a bribe from him. With Rs. 578 only per month, which included all his allowances, he was educating ‑one son in England to whom he was sending pound 58 every month (this covers his whole pay), his other son was also threatening to go to England, he himself had gone to England for a surgical operation, he was maintaining a car which cost him Rs. 150 per month and over and above, that he was maintaining himself and his family. He opened a bank account in Karachi but never had more than Rs. 7,000 therein. Larger sums he kept in his own house, perhaps for a greater security. The story of his wives bringing him enormous sums of money is like a page torn from the Arabian Nights. This was the gentleman who was responsible initially for all the woes of the appellant and Alu Shah. He had clearly a motive for bringing about a contingency where he could show to his superiors that he was thoroughly honest and above board. The appellant and Alu Shah, whom he seems to have known very well before that, provided him with the best opportunity. Their goods worth lakhs and lakhs of rupees were seized without any justification whatsoever. Alu Shah and his old father were put behind the bars. Alu Shah was not allowed to meet anybody and he was being constantly dragged to the Enforcement Office in handcuffs. These police officers themselves admit that there was no evidence against him and the appellant. They were not sent up in any hoarding or black‑marketing case and their goods had ultimately to be returned to them. If they paid the money to get off and if the police refused to accept the bribe and thought it fit on the contrary to send them up for the offence of offering bribe, why did the police not challan them in the main cases of hoarding and blackmarketing If they were voluntarily offering the bribe, why did the appellant not bring the money on the21st Why did he express 's inability to arrange for money When on 21st they willingly offered to pay Rs. 1,40,000, why did they reduce it to s. 1,10,000 the very next day Why again, did they reduce a amount of the first instalment from Rs. 75,000 to Rs. 30,0 only Can it be legitimately stated that Alu Shah was brought in hand cuffs to the police office and in that condition made to contact the appellant, so that they may be coerced to pay the money in order to enable the police to stage a drama which, according to Qudus, was to be useful to him, In view of all these facts follows :‑
"I believe that the Police Officer made a demand for the amount. The amount of Rs. 1,40,000 was not a voluntary offer. Had it been so, the accused would not have reduced it to Rs. 1,10,000, nor would have reduced the first instalment from Rs. 75,000 to Rs. 30,000. This shows that negotiations went on for a considerable period.. It is on the record that Mr. Qudus said to Inspector Siddiqi that if he succeeds in the trap, it would prove useful. All this may be true. The Police Officers were anxious to trap these people to show that they are honest officers and that they could not be tempted with a big sum of Rs. 30,000.
Having said so the learned judge observed as follows :‑
"It was argued that the police extorted this amount and the accused therefore were not responsible for making this offer under duress and coercion. The reply to all this is, that if the police officers were harassing the accused, and they demanded money, the accused should have prosecuted them for extortion."
Having said so, the learned judge should have taken the trouble of asking a simple question from himself, whether the appellant and Ala Shah, who are foreigners and who are doing such a big business in this country, could ever dare even to think of prosecuting these mighty officers of the Enforcement Police, whom the law had armed with such great powers which they were at all times grossly abusing without the least compunction of conscience. It is impossible that these people could have ever thought of prosecuting them. But Extortion remains an Extortion whether the Police Officers were prosecuted or not. This Extortion does not change its character and become a voluntary offer of bribe in absence of this prosecution. The two rulings quoted by the learned judge have no application to the facts of this case. Soliciting a bribe or showing willingness to take a bribe is one thing while putting a person in fear of injury, throwing him behind the bars, wrongfully confiscating all his stock‑in‑trade along with his account books, registers etc., and sealing his business premises with the sole object of coercing him to offer a fat bribe in order that drama may be enacted, photographs may be taken and wide publicity may be given to the incident is entirely a different story. It is a case of Extortion pure and simple. Extortion is defined in section 383 P. P. C. and it reads as follows :‑
"Whoever intentionally puts any person in fear of any injury to that person or to any other, and thereby dis honestly induces the person so put in fear to deliver to any person any property or valuable security, or anything signed or sealed, which may be converted into a valuable security, commits extortion."
The terror of a criminal charge, whether true or false, amounts to a fear of injury within the meaning of this section (7 W R Cr. 28). The threat of a criminal charge for the, purpose of extracting money not legally due is a threat of injury within this section (14 Cr. L J 413). Money extorted by a threat of wrongful confinement is an offence under this section (27 C 925). The "fear" must be of such a nature and extent as to unsettle the mind of the person on whom it operates and takes away from its acts the element of free and ' voluntary action which alone constitutes consent. Applying these doctrines to the facts of this case, it can be found out without any difficulty whatsoever that this was definitely a case of Extortion.
The learned P. P., while supporting the conviction, relied on evidence of Mr. Naqvi Magistrate who had accompanied the police party. Among other things, this witness made the following statement :‑
"I looked through the chinks and saw him (appellant) sitting with the Inspector. I heard him say that he could not bring the money that day. He came to the office so that he may not be treated as a '420'. He used the word '420'."
From this the learned P. P. concludes that this was a voluntary offer of the bribe. I do not agree. Even the learned judge below definitely held that the offer was not voluntary. This statement would only show that the appellant, who was undoubtedly in very strained circumstances, was just trying to humour the police officers in whose hands lay his liberty, his honour and his livelihood. Apart from this, the practice of taking Magistrates &other judicial officers on expeditions or missions of this kind ,has been c condemned by the highest Courts. In this connection it will be instructive to read the observations of their Lordships of the Privy Council in the case of Nazir Ahmed v. King Emperor (AIR(1936)PC253at258), as follows :‑
"In their Lordships' , view it would be particularly unfortunate if Magistrates were asked at all generally to act rather as police officers under section 162 of the Code ; and to be at the same time freed, notwithstanding their position as Magistrates, from any obligation to make records under section 164. In the result they would indeed be relegated to the position of ordinary citizen as witnesses and then would be required to depose to matters transacted by them in their official capacity unregulated by any statutory rules of procedure or conduct whatever . . . . . ."
In the case of M. C. Mitra v. State (A I R (1951) Cal. 5241), the following observations appears :‑
"Before I conclude I wish to express this Court's great disapprobation of the practice that seems to have become very frequent of sending Magistrates as witnesses of police traps. The Magistrate is made to go under disguise to witness the trap laid by the police. In this case it was Presidency Magistrate and in other cases which have come to our notice there have been other Magistrates who, became such witnesses.
To make the Magistrate a party or a limb of the police during the police investigation seriously undermines the independence of the Magistrate and perverts their judicial outlook. The Magistrates are the normal custodians of the general administration of criminal justice and it is they who normally decide and pass judgment on the acts and conduct of the police. It is not enough to say, therefore, that the Magistrate acting as a witness in a particular case does not himself try that case. This practice is all the more indefensible here specially when there is no separation of the executive from the judiciary.
The basic merit of the administration of criminal justice in the State lies in the fact that the person arrested by the police is entitled to come before an independent and impartial Magistrate who is expected to deal with the case, without the Magistrate himself being in any way a partisan or a witness to police activities.
There is another danger and that is the Magistrates are put in the unenviable and embarrassing position of having to give evidence as a witness and then being disbelieved. That is not the way to secure respect for the Magistracy charged with the administration of justice. In my judgment this is a practice which is unfair to the accused and unfair to the Magistrates.
It is also unfair to the police. Because charged with the high responsibility and duty of performing a great and essential public service of this State the police cannot afford to run the risk of opprobrium, even if unfounded, that they have enlisted the Magistrate in their cause. That risk is too great and involves forfeiting public respect and confidence .."
Their Lordships of the Supreme Court of India in the case of Rao Shiv Bahadur Singh and another v. State of Sindh‑P. (A I R (1954) 5 C 322), have observed as follows :‑‑
"Not only did the police authorities thus become active parties in the matter of trapping the appellant No. 1, they also provided a handy and ostensibly independent witness in the person of Shanti Lal Ahuja, the Additional District Magistrate. Even though he was a member of the judiciary he lent his services to the police authorities and became a limb of the police as it were . . . . We perfectly endorse the above observations made by Mr. Justice P. B. Mukharji and hope and trust that Magistrates will not be employed by the police authorities in the manner it was done by the Special Police Establishment in this case before us. The independence of the judiciary is a priceless treasure to be cherished and safeguarded at all costs against predatory activities of this character and it is of the essence that public confidence in the independence of the judiciary should not be undermined by any such tactics adopted by the executive authorities. We have therefore eliminated from our consideration the whole of the evidence given by Shanti Lal Ahufa, the Additional District Magistrate and come to our conclusion in regard to the guilt of the Appellant No. 1 relying solely on the testimony of the two independent witnesses Gadkari and Perulakar".
Thus the evidence of the Magistrate in this case does not, in any way advance the police case. I am unshaken in my belief that Rs. 30,000 were extorted by these three officers of the Enforcement Police acting in concert and conspiracy with each other, and sine I have reached this conclusion, it becomes obvious that the appeal must be accepted, the conviction and sentence imposed upon the appellant by the lower Court must be set aside and the appellant must be acquitted. The fine, if paid, must be refunded to him and so also Rs. 30,000 that were wrongly ordered by the lower Court to be confiscated. This amount was extorted by the police and it must be returned to him. I order accordingly. I would further call upon the authorities concerned to take proper action against these Police Officers in the interest of justice by prosecuting them for an offence under section 384 P. P. C.
Before I part with the papers, I would also like to draw the notice of those concerned to the following important observations of Lord. Goddard, C. J. in the King's Bench Division case of Branan v. Peek (1947 Vol. 2, All E L R 572 at p. 573).
"There is another point of much greater public importance. The Court observes with concern and disapproval the fact that the police authority at Derby thought it right to send a police officer into a public house to commit an offence. It cannot be too strongly emphasised that; unless an Act of Parliament provides for such a course of conduct‑and I do not think any Act of Parliament does so provide‑it is wholly wrong for a police officer or any other person to be sent to commit an offence in order that an offence by another person may be detected. It is not right that Police authorities should instruct, allow, or permit detective officers or plain clothes constables to commit an offence so that they can prove that another person has committed an offence. It would have been just as much an offence for the police constable in the present case to make the bet in the public house as it would have been for the book maker to take the bet if in doing so he had committed an offence. I hope the day is far distant when it will become a common practice in this country for police officers to be told to commit an offence themselves for the purpose of getting evidence against some one ; if they do commit offences they ought also to be convicted and punished, for the order of their superiors would afford no defence."
In the case before us Siddiqi Inspector admitted both in his F. I. R. and in his evidence on oath that he had agreed to accept the bribe. Thereby he clearly committed the offence under D section 161 P. P. C. But he alleged that he committed this offence in order that the offence of the appellant may be detected. This is exactly what their Lordships in the King's Bench Division case cited above have strongly condemned.
A. H. Appeal accepted.
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