Delhi District Court
Sc No: 57621/16 Cbi vs . Virender Singh & Ors. on 30 November, 2016
SC No: 57621/16 CBI Vs. Virender Singh & Ors.
IN THE COURT OF SH. GAUTAM MANAN
ADDITIONAL SESSIONS JUDGE-01, NORTH
ROHINI, NEW DELHI
In the matter of:-
S. C. No. 57621/16
FIR No. 62/10
Police Station EOU-VI/ EO-II
Under Section 489B & C, 3/4 MCOCA,
120-B IPC
CBI
Versus
1. Virender Singh
S/o Sh. Trilochan Singh
r/o D-1877 GF, Uday Chand Marg,
Kotla Mubarkpur, New Delhi.
2. Om Prakash Nagpal
S/o Sh. Nandlal Nagpal
r/o 20, Icewal Park,
Near Govt School,Azadpur, Delhi
3. Rajinder Kumar @ Sonu
S/o Late Bakshish Lal
r/o 317/1, Insar Bazar,
Panipat, Haryana.
4. Sarvan Ray
S/o Sh Ram Lagan Ray
r/o Village & Post Sansarpur
PS Muffasil, District Khagria, Bihar
Judgment 1 of 55
SC No: 57621/16 CBI Vs. Virender Singh & Ors.
5. Bakar
S/o Sh Nazir
r/o Village Chorianantpur,
PS Kaliacheck, District Malda, West Bengal
6. Sandip Sughar@ Sughar
S/o Sh. Mahadev Prasad
r/o A-49, Gali No.1,
Bhairath Vihar, Delhi
7. Deepak Kumar @ Pradeep Kumar
S/o Sh. Shiv Charan
r/o A-49, Gali No.1,
Bhairath Vihar, Delhi
8. Saiful Islam
r/o Village Chorianantpur,
PS Kaliacheck, District Malda,
West Bengal
9. Badal Sheikh
r/o Village Chorianantpur,
PS Kaliacheck, District Malda,
West Bengal ......Accused Persons
Date of institution 01.04.2011
Judgment reserved on 07.11.2016
Judgment Pronounced on 28.11.2016
Decision Accused Virender
Singh Convicted
Judgment 2 of 55
SC No: 57621/16 CBI Vs. Virender Singh & Ors.
JUDGMENT
1. In brief the prosecution story is that on 29.10.2010, CBI Team on reliable information intercepted a Haryana Roadways bus at a distance accused Virender Singh & Om Prakash who were traveling in the bus were asked to come out. On search of Virender Singh Rs 98,000/- FICN (Fake Indian Currency Notes) in denomination of Rs1000/- currency notes were found. Accused Om Prakash was found to be working with him as mediator. Both accused persons were arrested and on the basis of recovery of FICN, FIR in question was registered. Accused Virender Singh then got recovered 193 FICN in denomination of Rs500/- from his house as well.
2. During course of investigations, accused Virender Singh disclosed involvement of accused Rajender resident of Panipat in business of FICN. Disclosure made by accused Virender Singh led to recovery of FICN from accused Rajender, Sarvan Ray, Bakar. Other accused persons also being involved in the distribution of FICN were arrested and their confessional statements were recorded.
Judgment 3 of 55 SC No: 57621/16 CBI Vs. Virender Singh & Ors.
3. Investigations disclosed existence of organized crime syndicate headed by accused Virender Singh and his role emerged as causing possession, trafficking and circulation of FICN with sole objective of undue pecuniary gains. Accused Virender Singh also found involved in two other cases of PS Kirti Nagar, Delhi & PS Rudrapur, District Rudrapur, Uttrakhand. Keeping in view of involvement of accused Virender Singh a proposal for invoking MCOC Act, 1999 was made. Permission u/s. 23 (1) (a) of MCOCA was granted by then DIG vide order 19.01.2011.
4. Charge for offence punishable u/s 3 (2) & 3 (4) of The Maharasthra Control of Organized Crime Act, 1999 (Extended to NCT of Delhi vide notification dated 02.01.2002) was framed against all accused persons. Besides this, all accused persons were also charged with offence punishable under Sections 120B/489-B & C read with section 120B IPC. Accused persons pleaded not guilty and claimed trial.
Judgment 4 of 55
SC No: 57621/16 CBI Vs. Virender Singh & Ors.
5. Prosecution has examined 45 witnesses.
PW Name Role Documents
1 Ajaib Singh Complainant - Arrest PW1/1- Recovery/ seizure memo
Virender Singh (VS) & FICN
Om Prakash, recovery of PW1/2& 3, arrest of Om Prakash &
98 FICN of Rs 1000 and Virender
recovery 193 notes of Rs PW1/4 : Disclosure of Virender 500 denomination. PW1/5- Recovery/ pointing memo PW1/6: Complaint PW1/7- FIR PW1/8- Seizure M/cycle of Sarvan Ray PW1/9 : Disclosure of Sarvan Ray PW1/10 : Currency Notes of Rs1000/-
PW1/11 : Envelope of Currency Notes PW1/12 : Currency Notes of Rs500/-
PW1/13 : Envelope of Currency Notes PW1/Article 1 : Knee Cap PW1/Article 2 : Bus Tickets PW1/Article 3 : Mobile of Om Prakash PW1/Article 4& 4A-Handkerchief & Envelope 2 OP Upreti Independent Witness Raided house of Virender Singh Ex PW1/4, 5, 12 & PW1/Article 4& 4A 3 Desh Raj Bus Conductor Recovery from Virender, PW1/Article 2 4 Umed Malik Independent Witness Raid & recovery in Bus PW1/1, 2, 3 & 11, PW1/Article A1, A2 Judgment 5 of 55 SC No: 57621/16 CBI Vs. Virender Singh & Ors.
5 MK Gupta Bank Manager Specimen sign of Deepak Ex PW5/A
6 Kishan Singh Independent Witness- Disclosure VS, Ex PW6/A, personal
Arrest of accused search, disclosure & pointing out of
Rajinder Rajinder as Ex PW6/B -D.
7 Mohd Asim Mob:9555455942 does Ex PW7/A & B CAF, Voter I Card
not belong to him
8 Bal Kishan Independent Witness Raided house of Deepak recovered
pay-in-slip Ex PW8/A
9 SI Pawan Police Proved FIR against accused Virender
Singh Ex PW9/A to C
10 Jagpal Singh Independent Witness Confessional statement of Badal
Sheikh as Ex PW10/A
11 Narayan Police FIR 278/09 against accused Virender
Singh Singh Ex PW11/A to C
12 Hemant Bank Manager, Bank of Account opening form of accused
Kumar India, Khagaria, Bihar Sarvan & withdrawal slips as
Ex PW12/A to E.
13 Sher Khan Mobile Shop Owner Deposed in respect of Ex PW7/A
14 Sanjeev Nodal Officer Record of 9555455942,
Lakra Ex PW14/A to C
15 Aditya Bank Manager, SBI, Account opening form of accused
Kumar Sanholi Khagaria, Bihar Sarvan & withdrawal slips as
Ex PW15/A to F.
16 Ram Kumar Bank of India, Avtar Pay-in-slips Ex PW16/A to A-5 for
Nagar Branch, Jullunder amount deposited in account of Sarvan Ray 17 Krishan Bank of India, Pratap Pay-in-slips Ex PW17/A & B for Murari Nagar, Gaziabad amount deposited in account of Sarvan Ray Judgment 6 of 55 SC No: 57621/16 CBI Vs. Virender Singh & Ors.
18 Baljeet Singh Bank of India, Chandni Pay-in-slips Ex PW18/A & B for
Chowk Branch amount deposited in account of
Sarvan Ray
19 Sachin Mobile Shop Owner Issued 9555455942 to Deepak's
Wallia brother
20 Liyakat Mobile Shop Owner Gave 97359599162 to Morapul,
Ex PW20/ A & B.
21 Israr Babu Nodal Officer, Vodafone 9593624032-Baddiruddin
Ex PW21/A-C
9593652095 Baddiruddin
Ex PW21/D-E
9733108237 MiyanaSantu
Ex PW21/F-G
9735959916 Morapul
Ex PW20/A&21/H
9734939374 Sheik Jakir
Ex PW21/I & N
9775808304 Husain Bakr
Ex PW21/J&K
9733062336 Bakkar
Ex PW21/L & M
22 Shridutt Bank of India, Industrial Pay-in-slips Ex PW22/B to D for
Yadav Area Branch, Jalandhar amount deposited in account of
Sarvan Ray
23 Vishal Nodal Officer, Airtel 8826287961 Gurcharan
Ex PW23/B & C
9818494151 Kundan Ex PW23/D
24 Jagdish Mobile Shop Owner 9733062336 cannot say to whom
sold
25 Deepak Handwriting Expert Handwriting of Deepak on pay-in-
Handa slip as per his report Ex PW25/A
Judgment 7 of 55
SC No: 57621/16 CBI Vs. Virender Singh & Ors.
26 DK Anjan Bank of India, Satluj Pay-in-slips Ex PW26/B & C for
Market Branch, Jalandhar amount deposited in account of Sarvan Ray 27 RC Tiwari Bank of India, Chandni Pay-in-slip as Ex PW18/A for Chowk Branch amount deposited in account of Sarvan Ray 28 HS Sachan CBI Team Disclosure of accused Virender Ex PW6/A Arrest & recovery of FICN from accused Rajinder as per Ex PW6/B to F Arrest & recovery from accused Sarvan as per Ex PW28 A & B. Arrest & recovery from accused Bakar as per Ex PW28 C & D Arrest & recovery from accused Saiful Islam as per Ex PW28 E & F. Arrest of accused Badal Sheikh as per Ex PW28 G & H. 29 Aviram Shah Mobile Shop Owner 9593652095 given to Badruddin (21/D) 30 Mohd Akash Mobile Shop Owner 9775808304 to Husain Bakr Ex PW21/J 31 Pranav Independent Witness Arrest of Sarvan, Bakar & Sandeep Kumar Ex PW31/A:
Disclosure of Virender Singh Ex PW31/B: Disclosure of Sarvan Rai
32 Alamgir Mobile Shop Owner 9593624032 to Badruddin Ex PW 21/B 33 Tanmay Mobile Shop Owner 9734939374 to Sheikh Zakir Ex PW 21/I Judgment 8 of 55 SC No: 57621/16 CBI Vs. Virender Singh & Ors.
34 SK Peshin CBI Sent letters to Currency Note Press Nasik for examination of seized currency as per letters Ex PW34/A- C 35 AK Banerjee SP, CBI Recorded confessional statement Ex PW35/D, F & H of Bakar, Badal Sheikh & Saiful Islam 36 H Rehman Independent Witness Arrest of Sarvan, Bakar & Sandeep Same as 28 & 31 37 Ravi Kant SP, CBI Recorded confessional statement of Sarvan Ray as Ex PW37/B 38 AK Sharma SP, CBI Recorded confessional statement of Sandeep & Rajinder as Ex PW38/ C & G. 39 Vinod Yadav Ld MM Recorded statement of Sarvan Rai as per proceedings Ex PW39/A to D 40 Hem Raj Ld MM Recorded statements of accused persons as Ex PW40/ A to G 41 Santosh SP, CBI Confessional statement of Virender Singh & Deepak as per Ex PW41/C &E 42 AK Antony Currency Note Press Report Ex PW42/A, Nasik case property Ex PW31/D as Ex P-1 410/500 notes as Ex P-2.
100/500 notes as Ex P-3 Ex PW1/12 as Ex P-4 Ex PW1/10 as Ex P-5 43 Dr Minakshi Doctor MLC of Rajinder as Ex PW43/A 44 SGM Gilani DIG, CBI Approval,sanction MCOCA as Ex PW44/A & B Judgment 9 of 55 SC No: 57621/16 CBI Vs. Virender Singh & Ors.
45 Ashok CBI, Investigating Disclosure of accused Virender Kumar Officer Ex PW45/A Arrest & recovery from accused Sarvan, Bakar, Arrest of Sandeep, Arrest of accused Deepak as per Ex PW45/ B & C. Arrest of accused Saiful Islam, Badal Sheikh
6. On conclusion of the prosecution evidence, the statements of accused persons were recorded U/s 313 Cr.P.C. wherein all the accused persons stated that they were falsely implicated in the present case. They were never involved in any organized crime activity and neither they had gained any pecuniary benefits being a member of any organized crime syndicate. Accused persons denied of any recovery being effected from them.
7. In defense, accused Bakar examined DW1 Ajay Kumar from DRM Office, Railways who produced record as Ex DW1/ 1 to 3 & Ex DW1/P1 & P2 in respect of letter dated 28.10.2010 written by PW1 Ajaib Singh seeking assistance of Railway officials in investigations.
Judgment 10 of 55 SC No: 57621/16 CBI Vs. Virender Singh & Ors.
8. It is contended by Ld. SPP for CBI that prosecution through deposition of witnesses examined by them and documents produced on record have been able to establish on record that all the accused persons are involved in continuing trafficking of FICN. It is submitted that the accused persons were charge-sheeted together which establishes on record that they were members of a crime syndicate and were working together for their individual benefits as well as for the benefit of syndicate. It is further submitted that accused persons were found transacting in FICN in criminal conspiracy with each other and hence they are liable to be convicted under provisions of IPC as well.
9. On the other hand, it is submitted on behalf of the accused persons, that prosecution has miserably failed to prove its case against accused persons. It is argued that that no movable or immovable property, in the name of any of accused persons has been brought on record during the course of investigations and evidence. It is submitted Judgment 11 of 55 SC No: 57621/16 CBI Vs. Virender Singh & Ors.
that as prosecution has failed to prove the necessary ingredients of the offence, therefore the special rules of evidence as prescribed under MCOCA, does not come to the rescue of the prosecution. It is also submitted that prosecution has failed to prove recovery of FICN from any of accused persons beyond reasonable doubt and hence contended that accused persons be accordingly acquitted.
10. I have heard the arguments advanced by Ld. S PP for CBI and Ld. Counsels for the accused persons.
Charge against accused persons under Section 489-B & 489-C IPC
11. Case against accused Virender Singh: FIR in question was registered by complainant PW1 Ajaib Singh after the recovery of 98 FICN in denomination of Rs. 1,000/- currency notes from the possession of accused Virender Singh.
Judgment 12 of 55 SC No: 57621/16 CBI Vs. Virender Singh & Ors.
12. Recovery of FICN was made by CBI Team comprising Ajaib Singh, complainant (PW1), H.S. Sachan (PW28) and Sanjay Sehgal. from accused Virender Singh while he was traveling in a Haryana Roadways Bus towards Panipat. In order to prove recovery from accused Virender Singh, prosecution examined PW1 Ajaib Singh, PW3 Desh Raj (Bus Conductor), PW4 Umed Malik, a public person and PW28 H.S.Sachan.
13. All the above named witnesses in unison deposed that the when CBI Team reached near village Singhola before Singhu Border, Delhi, they intercepted one bus of Haryana Roadways. Bus was got stopped. Accused Virender Singh was with one person and they were asked to get down. On search of accused Virender Singh, 98 currency notes in denomination of Rs. 1,000/- (Ex. P5 ) were recovered from his knee stocking as per recovery cum seizure memo Ex. PW1/1.
Judgment 13 of 55 SC No: 57621/16 CBI Vs. Virender Singh & Ors.
14. PW42 K.A. Antony, Deputy Manager from Currency Note Press, Nasik, Maharashtra examined the seized currency notes Ex. P-5 and proved his report Ex. PW42/A as per which seized currency was found to be counterfeit notes.
15. It has been argued on behalf of accused Virender Singh that alleged recovery is doubtful as the CBI as per its letter dated 28.10.2010 had already sent a request to Northern Railway to depute some officer in respect of alleged recovery, whereas PW1 Ajaib Singh during his examination admitted that it was only on 29.10.2010, an information was received by him about the accused carrying the FICN. It is submitted that in view of the letter of the CBI dated 28.10.2010, the very foundation of the case that the secret information in respect of FICN came into knowledge of CBI on 29.10.2010 stands shunted.
16. No doubt that the letter Ex. DW1/2 indicates that the investigating team might be having an information with them regarding transactions of FICN on 28.10.2010 itself but this fact does not dent the Judgment 14 of 55 SC No: 57621/16 CBI Vs. Virender Singh & Ors.
recovery specially when all the above named witnesses have deposed that recovery of 98 FICN was effected from accused in their presence.
17. While appreciating the testimony of witnesses it has to be kept in mind that PW3 Deshraj was a bus conductor and PW4 Umed Malik is a public person who joined the investigation on the request of CBI. No motive can be attributed to them as to why they would depose falsely against the accused. While appreciating the testimony of the witnesses in respect of recovery from accused Virender Singh, it is seen that no material contradiction came out of their cross-examination and all of them throughout their testimony maintained that the recovery was effected from accused Virender Singh.
18. Thus, in the light of the testimony of PW1, 3 & 4 recovery of 98 FICN of Rs. 1,000/- currency notes stands established from the possession of accused Virender Singh while he was traveling in a Haryana Roadways Bus when it was intercepted by CBI team near Singhu Border, Delhi.
Judgment 15 of 55 SC No: 57621/16 CBI Vs. Virender Singh & Ors.
19. It is further the case of CBI that after recovery of 98 FICN, a disclosure statement of accused Virender Singh was prepared as Ex. PW1/4 and thereafter accused led the CBI Team to a room which was found locked. After broke opening the lock, accused Virender Singh pointed out towards one almirah where 193 FICN (Ex P-4) in denomination of Rs. 500/- were recovered wrapped in a handkerchief which were seized by the raiding team as per recovery cum pointing out memo Ex. PW1/5.
20. In order to prove the above stated recovery, besides PW1 Complainant Ajaib Singh, prosecution examined PW2 O.P. Upreti. PW1 Ajaib Singh deposed that accused Virender Singh led CBI Team comprising O.P. Upreti and pointed out towards a room which was found locked. Lock was broken and room was opened. Accused Virender Singh pointed towards one Almirah lying in the room from which 193 FICN in denomination of Rs. 500/- were recovered.
Judgment 16 of 55 SC No: 57621/16 CBI Vs. Virender Singh & Ors.
21. Similarly, PW-2 O.P. Upretti deposed that he along with CBI team went some place in Kotla. At the instance of accused Virender Singh, they went to the house which was found locked. The lock of door was broken and door was opened. There was one almirah in the room from which currency notes of Rs. 500/- denomination were recovered which were approximately 200 in numbers.
22. It has been pointed out by Ld. Defence counsel that PW-1 during his cross-examination admitted that the lock of the house in which accused Virender Singh was allegedly residing was not seized by the CBI team nor any documentary evidence was collected to substantiate that the said place of recovery was under the possession of accused Virender Singh. It is further submitted that though PW-1 admitted that the said house was located in partial residential and partial commercial locality but no public person or neighbor was made to join the investigation in respect of recovery.
Judgment 17 of 55 SC No: 57621/16 CBI Vs. Virender Singh & Ors.
23. It has also been submitted that PW-2 O.P. Upreti who is stated to be the public witness also testified that there was no picture of any God so to ascertain whether the house belonged to a Hindu or Muslim or any other religious person or whether there were any documents of ownership of the said house were found in the house or not. It is argued that the recovered currency notes were not given any identification mark, therefore in the light testimony of PW-1 & 2, recovery of FICN from the house of the accused Virender Singh is doubtful.
24. As stated above, the prosecution has only examined PW-1 & 2 as witnesses of the alleged recovery of FICN from the residence of accused Virender Singh. Both the aforesaid witnesses could not give any satisfactory answer as to whom the said house belonged. There is nothing on record to substantiate as to whether the said house was under
the possession of accused Virender Singh or not.
Judgment 18 of 55 SC No: 57621/16 CBI Vs. Virender Singh & Ors.
25. In order to prove recovery, onus was on investigating Agency to collect sufficient evidence in respect of ownership/ possession of the place of alleged recovery to substantiate to whom the room belonged but it is evident that no such evidence has been collected by the Investigating Agency.
26. Moreover, recovery cum pointing out memo Ex. PW1/5 mentions that the raiding party consisted of the persons whose signatures are appearing on the memo. Memo Ex. PW1/5 bears signatures of PW28 HS Sachan & PW45 Ashok Kumar as well. But both of them did not depose that they were members raiding team. They did not say that FICN was recovered from room of accused Virender Singh in their presence, then how the names & signatures of both PW28 & 45 are appearing on recovery cum pointing out memo Ex. PW1/5 is un- explained.
Judgment 19 of 55 SC No: 57621/16 CBI Vs. Virender Singh & Ors.
27. As stated above, there is no evidence as to whom the alleged room from where the FICN was recovered belonged nor there is any explanation as to how signatures of PW28 & 45 are appearing on memo if they were not part of raiding team. In totality of facts of the case, recovery of 193 FICN from the alleged place becomes doubtful and the prosecution case in this respect stands not proved beyond reasonable doubt.
28. Case against the accused Om Prakash: As per prosecution story accused Om Parkash was traveling with accused Virender Singh in Haryana Roadways Bus when 98 FICN of Rs. 1,000/- denomination were recovered from accused Virender Singh. It is admitted case of prosecution that no recovery of FICN was effected from possession of the accused Om Prakash.
29. It has been argued on behalf of prosecution that accused Om Prakash was working as the Mediator in circulation of fake currency notes and he arranges customer for accused Virender Singh Judgment 20 of 55 SC No: 57621/16 CBI Vs. Virender Singh & Ors.
and in this regard disclosure statement of accused Virender Singh was recorded who disclosed involvement of accused Om Prakash in transactions of FICN.
30. In order to prove its case against accused Om Prakash, prosecution has heavily relied upon the recovery of bus tickets from the possession of accused as per recovery memo Ex. PW1/1 and arrest memo Ex PW1/2. It has been submitted that the recovery of bus tickets (Ex. PW1/Article 2) from the possession of the accused Om Prakash goes to prove that he was traveling with accused Virender Singh and the disclosure statement of accused Virender Singh indicates involvement of accused Om Prakash in transacting of fake currency notes. Prosecution also relied upon the confessional statement of accused Virender Singh and Rajender Kumar to prove involvement of accused Om Prakash. It has been argued that as per Section 30 of Indian Evidence Act, confessional statement of co-accused is admissible against other co-accused as per the law settled by Hon'ble Supreme Court in Yakub Abdul Rajaq Memon Vs. State of Maharashtra case.
Judgment 21 of 55 SC No: 57621/16 CBI Vs. Virender Singh & Ors.
31. On the other hand, it has been submitted on behalf of accused that no recovery of FICN has been effected from the accused Om Prakash nor there is any admissible evidence on record against him so to connect the accused Om Prakash with the crime committed.
32. After going through testimony of PW-1, 3 & 4, it can be easily gathered that accused Om Prakash was found traveling in the same bus with co-accused Virender Singh. However, there is no evidence on record to suggest that there was any relation between him and co-accused Virender. PW3 Deshraj (Bus Conductor) and PW-4 Umed Malik did not testify that accused Om Prakash and Virender were traveling together. Investigating Agency has not collected any evidence to suggest that Virender and Om Prakash were in contact with each other or accused Om Prakash was aware of the FICN in the possession of the co-accused Virender Singh. In the absence of any evidence on record to connect Om Prakash with other accused persons, accused Om Prakash can not be held guilty merely only on the basis of confessional statement.
Judgment 22 of 55 SC No: 57621/16 CBI Vs. Virender Singh & Ors.
33. Needless to say that confessional statements are merely a piece of corroborative evidence and the accused can not be held guilty only on the basis of confessional statement made by the co-accused. In the present case, material evidence against the accused Om Prakash is lacking so to connect him with co-accused Virender Singh and other accused persons. Hence, he can not be held guilty of offence punishable u/s. 489B &C.
34. Case against accused Rajender Kumar: As per charge- sheet accused Virender Singh during his further interrogation disclosed vide disclosure statement Ex. PW6/A that he handed over FICN to the tune of Rs. 3 lacs to accused Rajender Kumar and the consignment which was seized from him was meant for accused Rajender Kumar. CBI Team along with accused Virender Singh and independent witness Krishan Singh (PW6) went to Panipat on 30.10.2010 from where accused Rajender was arrested and 410 FICN in denomination of Rs. 500/- currency notes were seized from his house to the tune of Rs. 2.10 Judgment 23 of 55 SC No: 57621/16 CBI Vs. Virender Singh & Ors.
lacs vide pointing out/ seizure memo Ex. PW6/D. In order to prove arrest and recovery of FICN from accused Rajender Kumar, prosecution examined PW6 Kishan Singh (an independent witness) and PW28 HS Sachan.
35. Besides recovery witnesses prosecution examined PW38 A.K. Sharma who recorded confessional statement of accused as Ex. PW38/C and PW40 Sh. Hemraj, Ld. MM who recorded statement of accused as Ex. PW40/C. It has been contended on behalf of prosecution that PW6 & PW28 have proved recovery of FICN from house of accused Rajender beyond reasonable doubt and in confessional statement accused Rajender has admitted his guilt thus, prosecution case against accused Rajender beyond all reasonable doubts.
36. Ld. Defense counsel submits that as per the prosecution story accused Virender Singh was made to call accused Rajender Kumar from Panipat Bus Stand and after receiving the call accused Rajender Kumar reached there but prosecution did not produce any call Judgment 24 of 55 SC No: 57621/16 CBI Vs. Virender Singh & Ors.
records to prove that any such call was made by accused Virender Singh to Rajender. It has also been pointed out that PW6 Kishan Singh failed to identify accused Rajender as the person at whose instance FICN were recovered and even there is discrepancy in respect of place of recovery as PW6 Kishan deposed that the FICN was recovered from a flour container in the house of accused Rajender whereas PW28 H.S. Sachan deposed that the place of recovery was an almirah.
37. As stated above, prosecution examined only two witnesses of the raiding team. One of those two, that is PW6 Kishan Singh has failed to identify accused Rajender. There is material contradiction in respect of place of recovery of FICN as PW6 deposed that FICN was in a flour container whereas PW28 deposed that FICN was lying in an almirah.
38. We cannot also lose sight of the fact that prosecution has not produced evidence in respect of call details of call which was made by accused Virender Singh to Rajender to call him at Panipat Bus Stand.
Judgment 25 of 55 SC No: 57621/16 CBI Vs. Virender Singh & Ors.
Therefore, the basis of prosecution version thatVirender Singh made a call to Rajender from Panipat Bus stand is not proved. Nonetheless, material contradiction in testimony of place of recovery of FICN and non-identification of Rajender by PW6 makes recovery of FICN from the possession of accused Rajender Kumar doubtful.
39. Case Against Accused Sarvan Ray: As per the charge- sheet, accused Sarvan Ray was arrested on 03.11.2010 at Barsoi and on his personal search recovery of FICN to the tune of Rs. 50,000/- were recovered in the presence of two independent witnesses Pranav Shah (PW31) and H. Rehman (PW36) by the CBI Team. Counterfeit currency notes were 100 in number and consisting of the denomination of Rs. 500/- each ( Ex P-3).
40. It has been contended by the prosecution that the accused Sarvan Ray after recovery of the FICN made a disclosure statement Ex. PW31/A and his confessional statement Ex. PW37/B was recorded wherein accused admitted his involvement in transacting in FICN.
Judgment 26 of 55 SC No: 57621/16 CBI Vs. Virender Singh & Ors.
Prosecution contends that the prosecution witnesses also proved deposit of money in the account of accused Sarvan Ray which establishes that accused was receiving the money in his bank account and was handing over the FICN to accused persons.
41. In order to prove recovery, prosecution examined PW28 H. S. Sachan, PW31 - Pranav Shah, PW36 - H. Rehman and PW45 Ashok Kumar (IO of the case). Let us examine the depositions of aforesaid persons in respect of arrest of accused Sarvan Ray and recovery of FICN from his possession.
42. PW28 H.S.Sachan deposed that in the morning of 03.11.2010, accused Virender Singh called accused Sarvan near Railway Crossing, Barsoi and when accused Sarvan came there, he was arrested vide memo Ex. PW28/A and FICN was seized from him vide memo Ex. PW28/B. During course of his cross-examination, PW28 deposed that at about 8:15 a.m., accused Sarvan came at the spot from where he was arrested which was at a distance of about 200 meters Judgment 27 of 55 SC No: 57621/16 CBI Vs. Virender Singh & Ors.
from the Railway Station. PW28 deposed that he does not remember whether any railway or public officer was made to join the investigation at the time of his arrest.
43. PW31 Pranav Shah an independent witness from Divisional Office, Railways deposed that he joined the CBI Team and in his presence CBI officials directed Virender Singh to call Sarvan accordingly, Virender Singh called accused Sarvan through his mobile upon which accused Sarvan came there and on his search, FICN was recovered. During course of his cross-examination, PW31 deposed that they reached Barsoi Railway Station at about 10:00 - 11:00 a.m. and accused Sarvan came at the spot between 3:00 - 4:00 p.m. Witness further deposed that accused Sarvan came on motorcycle however, he was unable to give the make or model or registration number of the motorcycle on which accused Sarvan came alone to the spot.
Judgment 28 of 55 SC No: 57621/16 CBI Vs. Virender Singh & Ors.
44. PW36 H. Rehman, employee of DRM Office also deposed that on the directions of CBI Team, accused Virender Singh called Sarvan and when accused Sarvan reached at the spot, FICN was recovered from him. During course of his cross-examination, PW36 deposed that the accused Sarvan came at the spot after about 30-60 minutes after 10:00-11:00 a.m. when they reached at the spot. He deposed that accused came on motorcycle but he was unable to say whether there was any pillion rider on the motorcycle or what happened to the motorcycle after the accused Sarvan was arrested from the spot.
45. PW45 Ashok Kumar, IO of case, deposed that he along with other members of Raiding Team reached at the spot at about 8:00 a.m. and accused Sarvan came at the spot at about 8:30 a.m. He deposed that the FICN recovered from accused Sarvan was not produced before the concerned Magistrate and after the apprehension of accused Sarvan, the CBI Team did not visit the house of the accused Sarvan or the place from where he had come to the spot.
Judgment 29 of 55 SC No: 57621/16 CBI Vs. Virender Singh & Ors.
46. Although, the prosecution claims that accused Virender Singh was asked to call accused Sarvan and on their direction accused Virender Singh called accused Sarvan but the call records in respect of any call being made by accused Virender Singh to accused Sarvan has not been produced on record. Therefore, the very fact that a call was made by accused Virender Singh to accused Sarvan becomes doubtful.
47. Moreover, PW28 H.S.Sachan claims that the accused Sarvan came to spot at about 8:15 a.m. but PW31 has deposed that accused came there between 3:00-4:00 p.m. PW36 testified that accused Sarvan came at the spot between 11:00 to 12:00 noon and the IO gives a different time of the arrival of accused Sarvan at the spot. It is evident that none of the witnesses have given similar time of arrival of accused Sarvan at the spot of his arrest. Time gap in the versions of witnesses is too vast to ignore specially when all of them have given different time of arrival of accused Sarvan.
Judgment 30 of 55 SC No: 57621/16 CBI Vs. Virender Singh & Ors.
48. PW28 H.S.Sachan also failed to give the names of the public witnesses (PW31 and PW36) as the members of the Raiding Team who joined the investigation with the CBI Team members. Nonetheless, the CBI Team after the alleged recovery of FICN from the possession of accused Sarvan did not take any step to find out that from which place the accused Sarvan had brought the said fake currency nor any search was made by the CBI Team in this regard. There is also no mention of the seizure of the motorcycle of accused Sarvan Ray on which he came at the spot as deposed by independent witnesses. These are major contradictions in the testimonies of the witnesses recorded in the Court, which makes the prosecution case doubtful in relation to the recovery of FICN from the possession of accused Sarvan Ray.
49. As far as the evidence of Bank officers (PW11, 15, 16, 17, 18, 22, 26 & 27 ) in respect of the deposit of money in the account of accused Sarvan Ray is concerned, it is matter of record that none of the depositors of the said money in the account of accused Sarvan Ray have been examined by the prosecution to establish the consideration of the Judgment 31 of 55 SC No: 57621/16 CBI Vs. Virender Singh & Ors.
deposit of money. There is no evidence on record to connect the accused with the distribution of FICN for the said deposits made in his account. In absence of any such evidence, the testimony of above noted witnesses does not help the cause of prosecution to prove its case against accused Sarvan Ray. More so, in absence of any corroborative evidence, the confessional and disclosure statement of accused alone are not sufficient to hold him guilty.
50. Case Against Accused Bakar: As per the charge-sheet, accused Bakar was arrested on 03.11.2010 at Railway Station Barsoi and on his personal search recovery of 96 FICN of Rs. 500/- denomination were recovered in the presence of two independent witnesses Pranav Shah (PW31) and H. Rehman (PW36) by the CBI Team. Counterfeit currency notes were 96 in number and consisting of the denomination of Rs. 500/- each ( Ex P-31/D).
51. In order to prove the recovery, prosecution examined PW28 H. S. Sachan, PW31 Pranav Shah, PW36 H. Rehman and PW45 Judgment 32 of 55 SC No: 57621/16 CBI Vs. Virender Singh & Ors.
Ashok Kumar, IO of the case. PW28 H.S.Sachan deposed that accused Sarvan disclosed that he obtained FICN from accused Bakar. Accused Sarvan called Bakar near a village and when accused Bakar came there, he was arrested vide memo Ex. PW28/C and FICN was seized from him vide memo Ex. PW28/D.
52. As stated above, although, the prosecution claims that accused Sarvan was asked to call accused Bakar and on their direction accused Sarvan called accused Bakar but the call records in respect of any call being made by accused Sarvan to accused Bakar has not been produced on record. Therefore, the very fact that a call was made by accused Sarvan to accused Bakar becomes doubtful. None of the witnesses examined by the prosecution have given similar time of arrival of accused Sarvan at the spot of his arrest. None of the witnesses depose as to time of arrival of accused Bakar at the spot. Time gap in the versions of witnesses in respect of arrival of accused Sarvan at the spot is too vast to ignore specially when all prosecution witnesses have given different time of arrival of accused Sarvan.
Judgment 33 of 55 SC No: 57621/16 CBI Vs. Virender Singh & Ors.
53. PW28 - H.S.Sachan also failed to give the names of the independent witnesses (PW31 and PW36) as the members of the Raiding Team who joined the investigation. Nonetheless, the CBI Team after the alleged recovery of FICN from the possession of accused Bakar did not take any step to find out that from which place the accused Bakar brought the said fake currency nor any search was made by the CBI Team in this regard. No attempt was made by investigating agency to raid the house of accused or to find out the place from where accused might have obtained FICN. There are major contradictions in the testimonies of the witnesses recorded in the Court, which makes the prosecution case doubtful to the alleged recovery of FICN from the possession of accused Bakar as well.
54. It has been contended by prosecution that call details between Bakar and Saiful indicates that during 03.10.2010 to 04.11.2010 they talked about 96 times with each other and accused Bakar talked to Deepak about 67 times. No doubt prosecution has been Judgment 34 of 55 SC No: 57621/16 CBI Vs. Virender Singh & Ors.
able to prove some kind of acquaintance between accused Bakar, Deepak and Saiful but content of conversation between the aforesaid accused persons is not brought on record. Merely because accused persons were in contact with each other cannot be a ground to infer that they indulge in some illegal activity. In absence of any concrete evidence to establish the nature of communication, the call records cannot be taken into account to establish the link between accused persons in dealing with FICN specially when there is no other corroborative piece of evidence.
55. Case Against Accused Sandeep: As per prosecution case, accused Bakar & Sarvan after their arrest disclosed involvement of accused Sandeep in transacting in FICN. Accused Bakar in his disclosure statement Ex PW31/C stated that accused Sandeep had come there from Delhi to collect FICN on behalf of accused Deepak and he can get accused Sandeep arrested, accused Sandeep is staying at Village Gospur, West Bengal. Accused Sandeep was then arrested vide arrest memo Ex PW28/D-1.
Judgment 35 of 55 SC No: 57621/16 CBI Vs. Virender Singh & Ors.
56. As per PW28 HS Sachan accused Bakar led to the house of his relative and accused Sandeep was arrested from there. PW 45 Ashok Kumar, IO deposed that accused Bakar led CBI Team to Village Gospur from where accused Sandeep was arrested.
57. However, both the independent witnesses (PW31 & 36) deposed that accused Bakar was made to call Sandeep, thereafter, accused Sandeep reached at Barsoi Railway Station and he was arrested from there. Arrest memo Ex PW28/D-1 also mentions that accused Sandeep was arrested at about 05:00 PM at Barsoi Railway Station.
58. It is evident that PW28 & PW45 who were members of CBI Team have testified that Sandeep was arrested from Village of relative of accused Bakar whereas two independent witnesses depose that he was arrested from Barsoi Railway Station. This is material discrepancy in respect of place of arrest of accused Sandeep. If at all, accused Sandeep was arrested from Barsoi Railway Station (as per deposition of independent witnesses), then the disclosure statement of Judgment 36 of 55 SC No: 57621/16 CBI Vs. Virender Singh & Ors.
accused Bakar Ex PW31/C that accused Sandeep had come to collect FICN and was staying in a village comes under cloud.
59. In view of material discrepancies, the prosecution has miserably failed to prove the place arrest of accused Sandeep and the disclosure statement of accused Bakar also stands not proved beyond reasonable doubt. It is not the case of prosecution that any recovery of FICN was effected from accused Sandeep. Thus, there is no evidence on record against the accused Sandeep to hold him guilty.
60. Case Against Accused Deepak: As per prosecution case, CBI team after arrest of accused Sarvan, Bakar & Sandeep came to Delhi. Accused Deepak whose name appeared in disclosure statement (Ex PW31/C) of accused Bakar was arrested on 04.11.2010 from his house in Delhi vide arrest memo Ex PW45/B. Accused Deepak vide disclosure statement Ex PW45/C stated that he deposited Rs 20,000/ - in account of accused Sarvan Ray and had sent accused Sandeep to collect FICN.
Judgment 37 of 55 SC No: 57621/16 CBI Vs. Virender Singh & Ors.
61. CBI Team conducted search of the house of accused Deepak in presence of PW8 Balkishan an independent witness, as per the search list Ex. PW8/A, one Pay-in slip dated 29.10.2010 showing deposit of Rs. 20,000/- in the account of Sarvan Ray was recovered. PW5 M.K. Gupta, Officer, Bank of India handed over the specimen handwriting of accused Deepak Kumar to the CBI Team as per the specimen writings Ex. PW5/A. PW25 Deepak Handa, Handwriting Expert proved that the handwriting appearing on Pay-in Slip belong to accused Deepak as per his report Ex. PW25/A.
62. It has been contended on behalf of prosecution that the Pay-In slip which shows that the accused Deepak had deposited Rs. 20,000/- in account of Sarvan Ray establishes the connect between the accused Deepak and Sarvan Ray and in his confessional statement Ex. PW41/E accused Deepak himself admits his role in transacting in FICN as such case against accused Deepak stands proved against him.
Judgment 38 of 55 SC No: 57621/16 CBI Vs. Virender Singh & Ors.
63. It is matter of record that no FICN was recovered from accused Deepak. As per the prosecution case, accused Deepak had sent accused Sandeep to collect FICN from accused Bakar. However, there is no evidence on record which links accused Deepak with accused Sandeep. Prosecution contends that accused Bakar and Deepak have talked to each other about 67 times and in this regard the CDR record of mobile number 9555455942 has been produced and PW19 Sachin Walia has been examined to prove that the mobile number 9555455942 was in use of accused Deepak. Even presuming that accused Deepak was in regular contact with accused Bakar even then the pay-in slip relied upon the prosecution shows deposit of Rs. 20,000/- in the account of accused Sarvan Ray and not in account of accused Bakar. As stated above no evidence has been brought on record to show that at any point of time accused Deepak was recipient of any FICN nor FICN has been recovered from him. Pay-in slip Ex. PW18/A is not a sufficient evidence to hold that the accused Deepak was involved in distribution of FICN or was a part of any conspiracy in circulating the FICN.
Judgment 39 of 55 SC No: 57621/16 CBI Vs. Virender Singh & Ors.
64. Case against Saiful Islam: As per prosecution case accused Bakar gave a disclosure statement Ex. PW45/D disclosing that accused Saiful supplied FICN to him 2-3 times earlier and he can get him arrested with FICN. CBI Team along with accused Bakar went to Malda from where accused Saiful was arrested vide memo Ex. PW28/E and his disclosure statement was recorded vide Ex. PW28/F.
65. It has been contended on behalf of prosecution that disclosure statement of accused Bakar Ex. PW45/D and disclosure statement of accused Saiful Islam Ex. PW28/F coupled with confessional statement of accused Saiful Islam which is proved on record as Ex. PW35/H establishes the case against accused Saiful Islam especially when the other co-accused persons have also named accused Saiful Islam as a person involved in transacting FICN.
66. After going through evidence it is evident that there is no recovery of FICN from accused Saiful Islam and except for the disclosure and confessional statements, there is no evidence against Judgment 40 of 55 SC No: 57621/16 CBI Vs. Virender Singh & Ors.
accused Saiful Islam, so to link him with the crime of transacting and circulation of FICN. There is no evidence on record that the accused possessed or transacted in FICN as such, the accused cannot be convicted solely on the basis of disclosure/ confessional statement specially when the veracity of confessional statement is questionable as accused vide his statement Ex. PW40/F stated that he put his signatures on his statement on assurance of CBI Officers that he would be free in three months. In these facts, accused Saiful Islam from whom no FICN has been recovered nor there is any corroborative piece of evidence to link the accused in distribution of FICN, accused Saiful Islam cannot be held guilty.
67. Case against Badal Sheikh: As per the prosecution case accused Saiful Islam gave a disclosure statement Ex. PW28/F disclosing that accused Badal Sheikh had supplied FICN to him and he can get him arrested with FICN. CBI Team arrested accused Badal Sheikh vide memo Ex. PW28/G and his disclosure statement was recorded vide Ex. PW28/H. Judgment 41 of 55 SC No: 57621/16 CBI Vs. Virender Singh & Ors.
68. It has been contended on behalf of prosecution that the disclosure statement of accused Saiful Islam Ex. PW28/F and disclosure statement of accused Badal Sheikh Ex. PW28/H coupled with confessional statement of accused Badal Sheikh which is proved on record as Ex. PW35/F establishes the case against accused Badal Sheikh especially when the other co-accused persons have also named accused Badal Sheikh as a person involved in transacting FICN.
69. After going through evidence on record, it is evident that there is no recovery of FICN from accused Badal Sheikh and except for the disclosure and confessional statements, there is no evidence against accused Badal Sheikh, so to link him with the crime of transacting and circulation of FICN. It is well settled law that a person cannot be convicted solely on the basis of confessional statements in the absence of any corroborative evidence. There is no evidence on record that the accused possessed or transacted in FICN as such, the accused cannot be convicted solely on the basis of disclosure/ confessional statement specially when the veracity of confessional statement is questionable as Judgment 42 of 55 SC No: 57621/16 CBI Vs. Virender Singh & Ors.
the accused vide his statement Ex. PW40/G stated that he put his signatures on his statement on assurance of CBI Officers that he would be free in three months. In these facts, accused Badal Sheikh cannot be held guilty.
70. Conspiracy by accused persons to transact in FICN:
Hon'ble Apex Court in the decision reported as Kehar Singh v. State (Delhi Administration) AIR 1988 SC 1883 has held that:-
"The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se enough.......It is, however, essential that the offence of conspiracy requires some kind of physical manifestation of agreement. The express agreement, however, need not be proved nor is it necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient......"
71. Thus, it is clear that the proof of offence of conspiracy would require, in most cases, some kind of physical manifestation of Judgment 43 of 55 SC No: 57621/16 CBI Vs. Virender Singh & Ors.
agreement. The physical manifestations may not be proved by overt acts but may be evidenced by conscious acts or conduct of parties and reasonably clear to mark their concurrence. Where evidence is clear, offence of conspiracy may be proved by necessary implications. Innocuous, innocent or inadvertent acts and events should not enter the judicial verdict. Since more often than not, conspiracy would be proved on circumstantial evidence.
72. Prosecution in order to prove the conspiracy between the accused persons has relied upon the recovery of FICN from accused Virender Singh and at his instance from accused Rajender, Sarvan Ray and Bakar. Besides recovery the prosecution has also relied upon call details to show that all the accused persons in criminal conspiracy with each other were dealing in FICN.
73. Recovery of FICN: As stated above, except for accused Virender Singh, recovery of FICN has not been proved against any of the accused persons. Merely on the basis of disclosure statements the Judgment 44 of 55 SC No: 57621/16 CBI Vs. Virender Singh & Ors.
accused persons cannot be held guilty of either possessing the FICN or dealing in it. Although some call details records have been produced but in absence of any evidence as to what kind of conservations took place between accused persons, accused persons cannot be held guilty of conspiring with each other specially in absence of any recovery of FICN from them.
74. In State (NCT of Delhi) v. Navjot Sandhu AIR 2005 SC 3820 it is held that 'few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused in the offence of criminal conspiracy'. In the instant case, there is no evidence show that there was any association, much less meeting of minds, between the accused persons. Prosecution has been unable to prove any of the above noted circumstances to prove the conspiracy. Thus, it is held that the prosecution has not been able to establish that a conspiracy was entered into by the accused persons to possess or deal in the FICN.
Judgment 45 of 55 SC No: 57621/16 CBI Vs. Virender Singh & Ors.
75. Case under MCOCA: CBI has invoked stringent provisions of MCOCA against accused persons only on the basis of involvement of the accused persons in a case previously registered against accused Virender Singh. Sole question which requires an answer is, as to whether the prosecution can invoke the provisions of MCOCA against the accused persons, so as to ask for punishment to them for "organized crime", just by satisfying the requirements of "continuing unlawful activities". In order to prove its case and to bring home the charge against the accused persons, investigating agency is supposed to collect further evidence to the effect that the accused persons were members of an "Organized crime syndicate" for which they were working and thus were indulged in "organized crime". Meaning thereby that by just bringing that evidence on record which can at best establish that accused persons were indulged in "continuing unlawful activities" is not sufficient.
76. If the provisions of Act are read in entirety, it shows that offence of "organized crime" is constituted by at least one instance of Judgment 46 of 55 SC No: 57621/16 CBI Vs. Virender Singh & Ors.
continuation, apart from continuing unlawful activity evidenced by more than one charge-sheets in preceding ten years. This is so because:
(a) If "organized crime" was synonymous with "continuing unlawful activity", two separate definitions were not necessary.
(b) The definitions themselves show that ingredients of use of violence in such activity with the objective of gaining pecuniary benefit are not included in the definition of "continuing unlawful activity" but find place only in the definition of "organized crime".
(c) What is made punishable under section 3 is "organized crime"
and not "continuing unlawful activity."
(d) If "organized crime" were to refer to only more than one charge-sheet filed, the classification of crime in Section 3(1)(i) and 3(1)(ii) on the basis of consequences of resulting in death or otherwise would have been pharsed differently, namely, by providing that "if any one of such offence has resulted in the death", since continuing unlawful activity requires more than one offence. Reference to "such offence" in Section 3(1) implies a specific act or omission.
(e) If the offence of organized crime itself is comprised of previous offences in respect of which charge-sheets have been filed, or in other words such charge-sheets are a component of the offence of organized crime, all such offences referred to in such charge- sheets could be tried at one trial, and the rider in Section 7 about triability of the accused under the Code at the same trial would be redundant.
(f) Entire Section 18 of the Act would become redundant if "continuing unlawful activity" evidenced by proof of filing of two charge-sheets is equal to organized crime. Since question of recording confessions would not arise. Certified copies of charge-
Judgment 47 of 55 SC No: 57621/16 CBI Vs. Virender Singh & Ors.
sheets, with certififed copy of order thereon by the Court taking cognizance, would be admissible without formal proof and if this itself was enough to constitute offence, no other evidence would be required to be tendered.
(g) For the same reason, there may be no need to examine any witnesses and consequently Section 19 would be redundant.
(h) If proof of filing of two charge-sheets is enough to establish offence of organized crime, there may be no occasion to carry out any investigation, other than collecting copies of charge-sheets. Consequently, it would be unnecessary for high ranking police officers to wield the power to allow recording information or to sanction prosecution after such charge-sheets are collected.
77. In the present case perusal of deposition of the most material witness of the prosecution in this case that is the investigating officer PW-45 Ashok Kumar, it is evident that no significant investigations have been conducted in the present case, except to collect the record of previous involvement of accused Virender Singh.
78. It is apparent that investigation agency failed to collect any evidence to the effect, of locating or ascertaining any property in the names of any immediate relative of the accused persons and of its nexus direct or remote with the accused facing trial. The only effort Judgment 48 of 55 SC No: 57621/16 CBI Vs. Virender Singh & Ors.
made by the investigating officer and of those who remained associated with him, was to collect the record of previous involvement of accused Virender Singh. As per the deposition of IO accused persons were found to be the member of crime syndicate run by accused Virender Singh for pecuniary gains. Investigating Officer has not placed on record any property in the name of the accused persons nor was able to find their bank accounts to investigate financial gains and admitted that except for the registration of present case. There is no evidence to establish any link between accused persons.
79. At best, accused persons can be termed as an co-accused of Virender Singh in present case and nothing more. There is no proof to establish that they participated in any other crime and there is absolutely no evidence that they gained any financial benefit being the member of any crime syndicate.
80. Confessional statements are not being corroborated by the prosecution by proving any link between accused persons with accused Judgment 49 of 55 SC No: 57621/16 CBI Vs. Virender Singh & Ors.
Virender Singh. No FIR has been proved on record against the accused persons. Even other wise also, there is difference between a participation in a crime and having being a member of an organized crime syndicate. Presuming that accused participated in circulation of FICN, even then they cannot be termed as members of an organized crime syndicate as they have no other case against them nor there is any evidence that they gained any financial benefit being the members of any crime syndicate. Thus, prosecution is unable to prove that they were members of any "organized crime syndicate" or indulged in "organized crime" and amassed movable and immovable assets therefrom.
81. As per prosecution, accused Virender Singh is involved in as many as 2 following cases of FICN.
i) FIR 450/06, PS Kirti Nagar & its charge-sheet as Ex PW9/A to C
ii) FIR 278/09, PS Kotwali & its charge-sheet as Ex PW11/A to C Judgment 50 of 55 SC No: 57621/16 CBI Vs. Virender Singh & Ors.
82. It is apparent from testimony of the IO that no movable or immovable property could be located, found or ascertained in the name of accused Virender Singh which he gained from his unlawful activity. Although the Investigating officer collected the record of previous involvements of the accused but only one FIR was found to be registered against him in Delhi and none of accused of the present case were found involved with him in that FIR. The said charge-sheet does not indicate any crime syndicate being run by the accused. No evidence whatsoever has been collected and proved on record by the prosecution to establish a nexus amongst the accused persons to be members of an "organized crime syndicate" doing "organized crime".
83. Nexus: As discussed, there is no evidence on record regarding the nexus amongst the accused persons. No phone records have been produced nor any witness has been examined by the prosecution to establish nexus between accused persons. No record has Judgment 51 of 55 SC No: 57621/16 CBI Vs. Virender Singh & Ors.
been produced by the prosecution to establish the ownership of any movable or immovable properties by the accused persons which have been purchased from ill-gotten money.
84. The only evidence left on record of the prosecution against all the accused persons, is the records of the previous case registered against the accused Virender Singh. The material question which erupts again, calling for an answer as to whether under section 3 of MCOCA, organized crime is punishable as defined under section 2 (1) (e) or "continuing unlawful activity" as defined under section 2(i)
(d) of the Act.
85. Answer even at the cost of repetition is that, it is "Organized Crime" which is made punishable under MCOCA and not "continuing unlawful activities". Further, in case titled "State of Maharastra vs. Jagansingh Nepal @ Jagya and Anr.(Bombay High Judgment 52 of 55 SC No: 57621/16 CBI Vs. Virender Singh & Ors.
Court)" decided on August 5, 2011 in Criminal Appeal No. 20 of 2011 it was held in para 38 that:
The prosecution will, therefore, have to firstly establish that there is an organised crime syndicate. It will have to satisfy that there exist the ingredients of "continuing unlawful activity". It will thereafter have to satisfy that the ingredients of the "organised crime" as spelt out by us herein before exist, prior to invoking the provisions of MCOCA. We are, therefore, unable to accept the contention that if the wider meaning is given, the MCOCA can be invoked even for sundry offences. As held by the Apex Court in the case of Ranjitsing Brahmajeetsing Sharma (supra), merely because the person who cheats or commits a criminal breach of trust more than once, the same by itself may not be sufficient to attract the provisions of MCOCA. By the same analogy, if a person commits murder more than once, would not by itself be sufficient to attract the provisions of MCOCA. At the cost of repetition, we make it clear that unless all the ingredients to constitute the offence punishable under MCOCA are available, it will not be permissible to invoke the provisions of MCOCA."
86. In view of above, the investigating / prosecuting agency cannot be permitted to invoke the stringent provisions of MCOCA just on the basis of previous involvement of the accused persons without any further proof that they have been working as members of an "organized crime syndicate" indulged in "organized crime".
Judgment 53 of 55 SC No: 57621/16 CBI Vs. Virender Singh & Ors.
87. As a result of above mentioned discussion, it is held that the evidence brought on record by the prosecution is not sufficient to establish the necessary ingredients of the offence, for which accused persons were charged. Accordingly, all the accused persons are entitled to be acquitted of the charges framed against them for the offence punishable U/s 3(2)& (4) of The Maharasthra Control of Organized Crime Act, 1999 (Extended to NCT of Delhi vide notification dated 02.01.2002).
88. Conclusion : In the light of aforesaid discussions, accused Virender Singh is convicted for the offence punishable U/s 489-C IPC for possessing Fake Indian Currency Notes. Proseuction case against accused Virender Singh falls for the offence punishable U/s 489 B/120 B IPC and U/s 3(2)& (4) of The Maharasthra Control of Organized Crime Act, 1999 (Extended to NCT of Delhi vide notification dated 02.01.2002).
Judgment 54 of 55 SC No: 57621/16 CBI Vs. Virender Singh & Ors.
89. All the other accused persons are acquitted of all the charges for which they were facing trial. Accused persons are directed to furnish a personal bond in the sum of Rs. 10,000/-u/s 437-A Cr PC with a surety in the like amount.
They be released forthwith, if not required in any other case. Matter now be listed for hearing of submissions on quantum of sentence against accused Virender Singh on 30.11.2016. Announced in open Court on Day of 28th November, 2016.
(GAUTAM MANAN)
ASJ-01:NORTH:ROHINI:DELHI
Judgment 55 of 55