Judgment

JAGANMOHAN REDDY, J.:- These appeals are by special leave against the judgment of the Bombay High Court confirming the conviction and sentence passed on Rajendraprasad Devidas Mishra A-1 and Raghunandan Trivedi A-2 under Section 161 read with Section 34, I. P. C. and Section 5 (2) read with Section 5 (1) (d) of the Prevention of Corruption Act. A-1 was also convicted under Section 212, I. P. C. The two accused, along with Chandrakant Ganpat Sovitkar A-3, were tried for offences under Sections 120-B, 161, 201, 212, 217, 218, I. P. C. and Section 5 (2) read with Section 5 (1) (d) of the Prevention of Corruption Act, but A-3 was acquitted of all the charges and A-1 and A-2 were convicted and sentenced as aforesaid. A-1 was also convicted by the Trial Court under Section 218, I. P. C. but his conviction and sentence under that section was set aside. The High Court in an appeal against acquittal of A-3, partly allowed the appeal and convicted him for offences under Section 161 read with Section 34, I. P. C. and Section 5 (2) read with Section 5 (1) (d) of the Prevention of Corruption Act and sentenced him to suffer one year s rigorous imprisonment on that account. The State appeal against A-3 in regard to other of fences was dismissed.

2. The prosecution case is that A-1 who was Inspector of Excise and A-2 who was Sub-Inspector of Excise were both posted at Indore. They received certain information that Truck No. M. P. E.-5948 was carrying opium from Upper India to Hyderabad. On receipt of this information the two accused left Indore on August 26, 1963 and reached Omerga via Hyderabad on September 3, 1963 with a view to intercept the said truck and seize the contraband. They took their residence in the Dak Bangalow at Omerga, wrote to the local police on the same day for giving them assistance. A-3 the local police Sub-Inspector posted one Head Constable and some constables for the said purpose and a barricade was erected on the road in front of the Dak-Bangalow. On September 5, 1963 at about 5 a.m. a Poona bound car which was driven by Chandrakant Lonkar P. W. 18 in which there were two males and 3 females was stopped as some of them appeared drunk and had blood stains on their clothes. Accused Nos. 1 and 2 came to the spot and checked the car. They sent for A-3 Sovitkar who arrived at about 5-30 a.m. in plain clothes and was engaged in making enquiries from the occupants of the said car. While he was so engaged, at about 6 or 6.30 a.m. a station wagon of blue colour bearing number plate M.S.W. 7159 and going towards Hyderabad was stopped. This vehicle was being driven by Sabir Sadik P. W. 17 and Abrar Ali Khan P. W. 16 was sitting by his side. A third person, one K. Amarsingh, the owner of the vehicle was sleeping in the rear of the vehicle. Sheikh Jamal Head Constable P. W. 2, who was on duty near the Dak-Bangalow, called out A-1 and A-2 who were in the Dak-Bangalow along with A-3. A-2 came out to make enquiries. He collected from P. W. 17 his licence, Ext. 37, the certificate of registration Ext. 38, certificate of insurance, Ext. 39, tax token card, Ext. 40, and the keys of the vehicle. Thereafter A-2 gave the keys of the vehicle to P. W. 18 and asked him to take the station wagon to the compound of the Dak-Bungalow which he did. By this time A-1 had also come out and when he and A-2 were making enquiries and wanted to take a search, K. Amarsingh objected to it. In the meantime A-2 tried to open the inside roof of the vehicle with a screw driver and in that attempt succeeded in pushing the screw driver into the top. When he pulled it out, the screw driver smelt of opium. He showed it to A-1 who, it is alleged, on getting the smell of opium began to give fist blows to K. Amarsingh. A-1 ordered K. Amarsingh to take out the articles from the station wagon. When two trunks, one suit-case, one hold-all and accessories of the vehicles were taken out and Amarsingh opened the trunk there was found in it a leather bag with zip a