Delhi District Court
House No. 95 vs Central Bureau Of Investigation on 7 May, 2013
1
IN THE COURT OF SH. DHARMESH SHARMA,
ASJ01, NEW DELHI DISTRICT, PATIALA HOUSE COURTS,
NEW DELHI.
Date of filing of Appeal : 14.07.2010
Date of final arguments : 22.04.2013
Date of judgment : 07.05.2013
CA No. 34/12
R. Vijayan
S/o Late P. Rathinam
R/o N520, Sector8, R. K. Puram
New Delhi
And earlier residing at :
House No. 950, Sector12,
R. K. Puram, New Delhi
V.
Central Bureau of Investigation
CBI Hutments
New Delhi
APPEARANCES
Present : Ms. Jaswinder Kaur, Ld. Counsel for the appellant/ convict
Mr. R. C. Rao, Ld. Senior PP for the State (CBI)
07. 05. 2013
JUDGMENT
1. This judgment shall decide an appeal as per Section 374 of Cr.P.C preferred by the convict/appellant against the judgment on conviction dated 13.04.2010 followed by order on CBI v. R. Vijayan 1/19 2 sentence dated 03.07.2010 passed by Sh. Sanjeev Kumar, the then Ld. MM, PHC, New Delhi.
2. Suffice to state that appellant has been convicted by the Ld. MM for committing offences u/s 120B r/w section 419/420/467/471 of IPC while he has been acquitted for committing offences u/s 12 (1) (b) and 12 (1) (d) of the Passports Act 1967 and thereby sentenced to undergo simple imprisonment for a period of one year u/s 419 of IPC; simple imprisonment for a period of three years and fine of Rs. 500 in default to undergo further imprisonment for a period of one month u/s 420 of IPC; and further sentenced to undergo imprisonment for a period of one year u/s 419/471 of IPC r/w Section 120B of IPC and also sentenced to undergo imprisonment of two years and fine of Rs.500 for each of the offences u/s 420/467 of IPC r/w section 120B of IPC in default of payment of fine to undergo simple imprisonment for a period of one month and all the sentences were directed to run concurrently.
FACTS
3. The case of the State (CBI) in a nutshell is that complainant P. J. Corgon, Drug Liaison Officer, British High CBI v. R. Vijayan 2/19 3 Commission, Chanakyapuri, New Delhi filed a complaint on 11.07.1991 alleging that two persons namely Paul Abraham Mennie and D. R. Arumugam travelled in British Airways Flight No. BA036 in the intervening night of 14th 15th May, 1991 from Indira Gandhi International Airport on Indian Passport; that both the said persons had been introduced by accused/ appellant, an Intelligence Officer, NCB, New Delhi on the premise that two persons were Narcotics Informers from the South of India; that on reaching Gatewick Airport, London, the said two passengers not only destroyed travel documents but also claimed political asylum on the ground of being Sri Lankan Nationals.
4. During investigation coaccused N. Selvarajah was arrested on 20.10.1991 from Hotel Dhanvilas, Karol Bagh, New Delhi and searches were conducted on his behest at house no. 739, Vikaskunj, Vikas Puri, New Delhi besides searches conducted on 23.10.1991 at his native place situated at 45, Bhartiyadas Street, Valsarvakkam, Madras. During such searches several incriminating articles / documents were recovered inter alia 22 passports of both Indian and foreign origin, 95 rubber stamps, seals of various passports offices in CBI v. R. Vijayan 3/19 4 India and abroad including Visa stamps of various countries, Indian currency, travellers' cheques in foreign currencies, some diaries and Air India tickets.
5. It is the case of the State (CBI) that appellant/convict had taken active part in the criminal conspiracy with accused N. Selvarajah in successfully deporting the said two Sri Lankan Nationals facilitating travel to UK on fake Indian passports; that investigation revealed that accused T. S. Jaichandran Sri Lankan National had actually travelled to UK through British Airways Flight on the basis of Indian Passport No. H491237 dated 16.06.1980 that had been issued by the Regional Passport Office, Madras to one Paul Abraham Mennie, an Indian National who wanted to go to Austriala and came in contact with accused N. Selvarajah running a traveling agency in the name of M/s Sara Travels and the passport of P. A. Mennie which was fabricated by putting photographs of T. S. Jaichandran. It is alleged that similarly the other Srilankan Nationals in the name of D. R. Arumugam travelled on Indian Passport no. I002303 dated 29.01.1991 issued by Regional Passport Office, Trichy.
CBI v. R. Vijayan 4/19 5
6. On completion of investigation, the present charge sheet was filed against the accused persons. On filing of supplementary charge sheet, on 10.02.2004 accused R. Vijayan was charged u/s 120B r/w Section 419/420/467/471 IPC r/w Section 12 (1) (2) of the Passport Act to which accused pleaded not guilty and claimed trial.
7. It is pertinent to mention here that initially coaccused Nirmalan Selvarajah had been arraigned for trial by the CBI for committing offences u/s 472/473/474 of IPC r/w Section 467 of IPC and later on filing of supplementary charge sheet by the CBI arraigning the present appellant/ accused R. Vijayan. Although, coaccused N. Selvarajah changed tracks. The prosecution had examined as many as 11 witnesses, accused Nirmalan Selvarajah moved an application confessing his guilt and Sh. R. C. Yaduvanshi, the then Ld. ACMM, vide order dated 16.05.1994 convicted the accused N. Selvarajah finding him guilty u/s 419/471/474 of IPC r/w section 120B r/w Section 13 (1) (b) of the Passport Act followed by order on sentence dated 19.05.1994 whereby he was sentenced to undergo various terms of imprisonments.
CBI v. R. Vijayan 5/19 6
8. It may be indicated that accused Jaichandran Thambian and Dia Rajan Abraham were declared PO.
PROSECUTION EVIDENCE
9. In the instant case, the prosecution examined as many as 28 witnesses. The star witnesses for the prosecution were PW1 Keneth Washington, Operation Coordinator at IGI Airport during the intervening Night and PW2 was Mr. J. B. Singh as Passengers Service Manager at IGI and I shall dwell on their evidence in detailed in this judgment later stage.
10. PW3 was Mr. Gopal S. Bablani, Senior Customers Assistant at IGI airport, New Delhi who besides deposing about Mr. Ken Washington and Mr. J. B. Singh posted on duty during the relevant time in the intervening night of 14th 15th May, 1991 also deposed about the passengers manifest on Aircraft Flight No. BA036 Ex. PW 2/A and Ex.PW 2/B showing that Sh. D. Aru Mugam and Mr. P. Maini had taken the flight that made a departure at 1:30 hours on 15.05.1991.
11. PW4 was Mr. Ram Niwas, Duty officer in the departure left wing of B Shift at IGI, Airport whose duty was to issue stamp to the clearing Officials who testified that he issued stamp no. W11 to SI Hem Chander and deposed about duty CBI v. R. Vijayan 6/19 7 register Ex. PW 4/A besides embarkation cards Ex. PW 4/2 belonging to P. A. Mennie and Ex. PW 4/3 belonging accused D. R. Arumugam.
12. PW5 was Mr. K. Parthasarthi running a travel Agency at Kumbakonan Tamil Nadhu who deposed about an application submitted by A. Daisingarajan Ex. PW 5/A1 and Ex. PW 5/B whereby he authorized his travel agency to collect the passport on his behalf. He stated that at the time of submitting the application, A. Daisingarajan and Mr. N. Selvaraj had come to his office.
13. PW6 was Mr. R. Rajesagaran working as Branch Manager of M/s Travel Lok Agency, Arsa Major Road, Egmore, Madras who testified that accused N. Selvarajah came to his office along with one boy P. A. Mannie during the period April, 1991 to November, 1999 about 12 Airline Tickets had been purchased by N. Selvarajah and vouchers in regard to returned ticket were issued for Delhi Vienna LondonDelhi were proved Ex. PW 6/C to Ex. PW 6/F.
14. PW7 was Mr. V. Kuppuswamy, Tehsildar Trichurappalli, Tamil Nadu who deposed about the requirement of issuance of Nativity Certificate who also testified that Nativity CBI v. R. Vijayan 7/19 8 Certificate Ex. PW 7/1 D. R. Arumugam had not been issued from his office and the same was not genuine and that the certificate Ex. PW 7/2 and Ex. PW 7/3 had not been issued from his office.
15. PW8 was Inspector R. M. Khan who deposed that the Nativity Certificate of accused D. R. Arumugam Ex. PW 7/1 was not genuine and he identified the seal impression of the office on documents Ex. PW 7/4 to Ex. PW 7/12. In this regard, he deposed that he received letter dated 08.08.1991 from the Head Master Government Higher Secondary School Thiruneipair, Mavoor about accused D. R. Arumugam which letter is Ex.PW 8/3 with Zerox copy of transfer certificate marked B.
16. PW9 was Mr. S. Rangaswami, Head Master Higher Secondary School at Thiruneipair, Mavoor who testified that transfer certificate Ex. PW 9/C had not been issued by his office and the certificate number had rather been issued to one S. Gurunathan vide admission no. 1048 Ex. PW 9/1. While transfer certificate Ex. 9/2 belonging to P. Chilla Pandiyan posted at PS Saidapet Chenai. He produced the copy of the Srilankan refugee movement register 467/UP/ J1/90 dated CBI v. R. Vijayan 8/19 9 30.06.1990 Ex. PW 10/I.
17. PW11 was S. Ellappan acting as Passport Officer Trichy .
He deposed about issuance of passport I002303 29.01.1999 to accused Arumugan Daisiunga Rajan and stated that at the time of issuance which documents Ex. PW 11/1 he was not aware that he was a Tamil National.
18. PW12 Was Mr. K. N. Subramaniyam posted as Counter Superintendent, Passport office Chenai during the relevant time. He deposed about the passport issued to PA Maine that have been collected by one S. Ganesh working in the Passport office.
19. PW13 was Inspector Rajiv Dwivedi posted in SIC/1 who assisted Inspector Y. S. Rathi during the investigation in this case and examined certain witnesses whose statements are Ex. PW 13/1 to Ex. PW 13/5.
20. PW14 was Mr. D. S. Pandit Dy. Secretary (HomeG) Central Government who proved the sanction order Ex. PW 14/1.
21. PW15 was Mr. C. V. Nair, Regional Passport Officer Madras who handed over certain documents to the CBI vide seizure memo Ex. PW 15/1.
CBI v. R. Vijayan 9/19 10
22. PW16 was Mr. S. Aadimulam who deposed that a search was conducted at his residence of N. Selvarajan and certain documents were recovered by the CBI officers vide seizure memo Ex. PW 3/1 bearing his signature at point A to B and A to A.
23. PW17 was Mr. S. Ganesh who was posted as LDC in Dispatch section Passport office, Chennai and deposed that he had dispatched the passport bearing no. H491237 to Mr. Paul Abraham Mennie.
24. PW18 was Dr. G. Sampat Kumar posted as Assistant Surgeon at Government Royapettah Hospital, Chennai who deposed that the person shown in the photograph Ex. PW 18/1 was introduced to him by his friend and he attested the said photograph.
25. PW19 was Mr. A. Raishekhar posted as casual labourer at Passport office, Trichirapalli who deposed that passport no. I002303 was prepared by him and issued to Mr. Arumugam Daisinga Rajan.
26. PW20 was Mr. Mohinder Singh who was posted as Assistant Government Examiner (GEQD), Shimla, who deposed that documents Ex. PW 20/A1 to Ex. PW 20/A13 and CBI v. R. Vijayan 10/19 11 Ex. PW 20/B1 to Ex. PW 20/B2 containing questioned writing and signatures bearing his signatures at point A and B and the detailed reason in support of his opinion which are Ex. PW 20/C1 to Ex. PW 20/C2.
27. PW21 was Mr. C. Keshav Ram working as Chief Manager in Indian Overseas Bank, Mount Road Branch, Madras who deposed that account no. 26495 was opened by Mr. S. Jaichandran who was a Srilankan national and was having passport no. J0651324 issued at Colombo.
28. PW22 was Mr. M.P.S. Nair who was Assistant Manager at Gaurav Guest House, Karol Bagh, New Delhi who deposed that during the year 1991 one N. Selvaraja alongwith Ms. Neerajam and Sh. Jaichandran and Ms. Arumugam stayed in his guest house/hotel vide visitor register already Ex. PW 20/B2.
29. PW23 was Mr. Vineet Grover who was running his own guest house in the name and style of M/s Dhanvilas Palace at Karol Bagh, New Delhi who deposed about the seizure memo already Ex. PW 1/A by the Ld. CMM, Delhi vide order dated 26.6.1992 and that of personal search memo Ex. PW 23/A.
30. PW24 was Mr. R.N.P. Sinha who was posted as Inspector, CBI at SICI New Delhi who deposed that he had gone to CBI v. R. Vijayan 11/19 12 Chennai and Tirucharapalli to seize certain documents which are Ex. PW 24/1, Ex. PW 24/2, Ex. PW 15/1 and Ex. PW 11/1 bearing his signatures at point A, B and C respectively.
31. PW25 was Mr. H. C. Saluja who during the year 1991 was posted as Dy. SP, CBI at SICI, New Delhi and deposed that he had participated in the search conducted at Hotel Dhanvilas and certain documents were recovered by the IO from the accused .
32. PW26 was Mr. Subhash Chander Gupta who was posted as Inspector at SICI who participated in the search proceedings at room no. 7, Dhanvilas Palace vide recovery memos already Ex. PW 13/1, Ex. PW 13/4 and Ex. PW 13/5.
33. PW27 was Mr. Paul Abrahim Mellie who deposed that his friend Mr. Gavan introduced him to Mr. N. Selvaraj who was running a traveling agency in the name of Sara Travels and used to arrange tickets for the passengers traveling abroad on the basis of forged passports.
34. PW28 was Mr. Y. S. Rathee who was posted as SICI Branch of CBI during the year 1991 who deposed that searches were conducted at Hotel Dhanvilas Palace, Karol Bagh and certain incriminating documents were recovered. He further CBI v. R. Vijayan 12/19 13 deposed that from the hotel Dhanvilas accused N. Selvaraj was arrested and certain documents were also seized from M/s Thomas Cook, Madras.
35. On the close of the prosecution evidence, all the incriminating facts and circumstances brought on the record by the prosecution were put to the accused in terms of Section 313 Cr. P.C particularly the evidence of PW1 and PW2 to whcih the accused stated that their testimonies were wrong. He claimed innocence and also claimed that he has been falsely implicated in this case. Accused did not chose to lead any evidence in this defence.
JUDGMENT OF LD. TRIAL COURT
36. Ld. MM while impugned judgment dated 13.04.2010 from the evidence of PW1 to PW4 found that appellant / convict had persuaded / misrepresented the airport officials that the cotravellers / coaccused persons were Narcotics informers and made them believe that the passengers / co accused persons were genuine persons and Indian citizens on the basis of which the coaccused were allowed to travel on the British Airways Flight. Ld. MM also found the involvement of the appellant / convict based on his details that were found in CBI v. R. Vijayan 13/19 14 the diary Ex. PW 20/A1; and thus convicted the appellant/ accused and sentenced him to various terms of imprisonment as per order on sentence dated 03.07.2010.
37. The impugned judgment and order on sentence are assailed inter alia on the ground that the same is fallacious, perverse and contrary to evidence led on record by the prosecution.
38. I have given my thoughtful consideration to the submissions made by Ms. Jaswinder Kaur, Ld. Counsel for the appellant. I have also heard Mr. R. C. Rao, Ld. Senior PP for the State (CBI) and also gone through the present appeal and documents filed besides the Trial Court Record. DECISION
39. At the outset, I am unable to persuade myself to subscribe to the findings that have been given by the Ld. Trial Court. Although, both the PW1 Keneth Washington and PW2 Mr. J. B. Singh stated that accused convinced Mr. P. J. Corgon that the two passengers/ coaccused (who travelled abroad) were Narcotic informers and were genuine person, it is difficult to discern if that Airport Authorities were actually persuaded by the appellant/ convict in giving final clearance CBI v. R. Vijayan 14/19 15 to the two coaccused for travelling by British Airways Flight BA036. Indeed, it appears that the appellant / convict was acquainted with Mr. P. J. Corgon since both were in the field of checking trafficking of drugs. But it is categorical in the evidence of PW1 Keneth Washington as well PW2 Mr. J. B. Singh that the two passengers/ coaccused were not only thoroughly examined by them but also by the Immigration Officials and their passports and Visas for Vienna, Austria were otherwise found to be genuine.
40. It is pertinent to mention that PW1 Keneth Washington stated that two passengers/ coaccused persons were in fact holding tickets for a returned flight as well. At the cost of repetition, both PW1 and PW2 stated that they themselves verified the profile of the two passengers/ coaccused persons and found nothing wrong in regard to their travelling documents.
41. What actually transpires from the testimonies of PW1 Keneth Washington and PW2 Mr. J. B. Singh is that the appellant / convict was available at the airport and bonafidely canvassed the case of the two passengers/ coaccused probably for being fellow Tamilian. There is no iota of evidence CBI v. R. Vijayan 15/19 16 that the appellant / convict had had any role in the entire serious of forging of their passports and Visas. None of the prosecution witnesses has implicated the appellant / convict in any manner in the act of forging or procurement of forged passports or visas in the name of two passengers/ coaccused persons.
42. Admittedly, two passengers/ coaccused persons were travelling to Vienna, Austria and those were the days when transit Visa was not required for landing on London Airport. I would say that much hype has been created by the prosecution case that the two passengers/ coaccused persons on reaching London claimed political asylum but no investigation has been conducted by the CBI as to what was the fate of their application or claim for political asylum. The evidence that they sought political asylum is inadmissible for being hearsay as except for the written complaint of P.JCorgon, there is no other evidence.
43. It is needless to point out that as per the prosecution, Mr. P. J. Corgon, who was the official of British High Commission, had himself travelled in the flight BA 036 in which the two passengers/ coaccused persons had also CBI v. R. Vijayan 16/19 17 travelled. Unfortunate for the prosecution case Mr. P. J. Corgon has not been examined in this case on the pretext of the witness covered by the Vienna Convention on dipolmatic immunity and what discussion took place between him and the appellant fall in the realm of hearsay only.
44. In fact, if the evidence of PW2 Mr. J. B. Singh is believed, it was at the insistence of Mr. P. J. Corgon that the two passengers/ coaccused persons were allowed to be travelled by the British Airways Flight No. BA036 and he categorically stated that he was not influenced at all by the statement of appellant/ convict.
45. Ms. Jaswinder Kaur, Ld. Counsel for the appellant/ convict also rightly canvassed the point that mere fact that there was an entry about the name and contact number of the appellant / convict in the diary of coaccused/ coconvict N. Selvaraja Ex. PW20/A1 by itself is not decisive about any role played by her client in the act of facilitating the departure of two passengers/coaccused persons.
46. The last issue that needs to be dealt with is that as on the alleged date of commission of offence 14th /15th May 1991, appellant / convict was a public servant. Assuming for the sake CBI v. R. Vijayan 17/19 18 of convenience, a case of wrongful inducement or persuasion upon the Airport officers for facilitating departure of two passengers/ coaccused persons was made out, the said act was done by the appellant / convict during the purported discharge of his official duties. It is immaterial that he wasn't on duty at the relevant time. NO sanction for prosecution was obtained in this case u/s 197 Cr. PC even before or after his retirement from his service and thus cognizance of offence against him was ex facie barred.
47. It is pertinent to mention here that the Director General of Narcotics Control Bureau in his letter dated 25.09.1991 Ex. PW 28/H informed that no source was allowed to be travelled from Delhi to London in May 1991 but it skips the issue whether any source was allowed to travel from Delhi to Vienna. In any case, the letter Ex. PW 28/H suggests that no disciplinary action had been taken against the appellant/ convict by the department either. Lastly, in the absence of any evidence about prior meeting of mind as between the appellant and the two Sri Lankan Nationals, the possibility that appellant was not aware about the illegal design of the Lankan nationals seeking political asylum on reaching London CBI v. R. Vijayan 18/19 19 or that appellant was duped cannot be ruled out. FINAL DECISION
48. In the said view of the discussion, I find that although there is some suspicion against the appellant / convict but that suspicion cannot replace the cardinal principle of proof of guilt beyond reasonable doubt. I, therefore, find that the prosecution fails to prove the guilt of the appellant/ accused beyond reasonable doubt. I therefore, acquitted the appellant/ accused. His PB&SB are hereby cancelled.
49. A copy of this judgment be tagged along with Trial Court Record be sent back for consignment. The appeal file be consigned to record Room.
ANNOUNCED IN THE OPEN COURT (DHARMESH SHARMA) TODAY i.e 07.05.2013 ASJ01/PHC/NEW DELHI 07.05.2013 .
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CBI v. R. Vijayan 19/19