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Delhi District Court

Cc No. 143/2015 Cbi vs . Ashok Kohli & Ors. Page No. 1 Of 85 on 31 August, 2015

       IN THE COURT OF M.K. NAGPAL, SPECIAL JUDGE (PC ACT),
                  CBI­08 (CENTRAL), TIS HAZARI COURTS, DELHI



CC No.             :    143/2015 (Old No. 96/2008)
RC No.             :    62(A)/1995/CBI/ACB/ND
U/s                :    120B IPC r/w Section 35 of the Customs
                        Act, 1962 & Section 13(2) r/w Section 13(1)(d) of
                        the PC Act, 1988
Unique ID No.           02401RO969512003


Central Bureau of Investigation (CBI)


           Versus


1.         Ashok Kohli (Since P.O.) (A­1)
           S/o Late Sh. Pindi Dass Kohli
           R/o B­45/B, Ramesh Nagar
           New Delhi

2.         M. L. Verma (A­2)
           S/o Sh. Sita Ram Verma
           R/o C­3/3177, Vasant Kunj
           New Delhi
           Foreman, Air India Engineering Deptt.,
           IGI Airport, New Delhi

3.         Virender Singh Batra (A­3)
           R/o A­2B, Shalimar Bagh
           Delhi


CC No. 143/2015                CBI Vs. Ashok Kohli & Ors.        Page No. 1 of 85
 4.         Ramji Sandhu (A­4)
           S/o Sh. Sardara Ram
           R/o 39/8
           Old Rajinder Nagar
           New Delhi

5.         Rakesh Sapra (A­5)
           S/o Sh. Subhash Sapra
           R/o 9/45, Moti Nagar
           New Delhi

Date of FIR                                          : 31.07.1995
Date of Institution                                  : 08.06.1998
Arguments concluded on                               : 21.08.2015
Date of Judgment                                     : 31.08.2015


JUDGEMENT

All the above accused persons were sent to face trial by the CBI on allegations that on 31.07.2015, a secret information was received by CBI that A­1 (since P.O.) would be transporting gold worth Rs. 50 lacs by Air India Flight No. 732 reaching at the IGI Airport, New Delhi at 0240 hours on 31.07.2015 and the said gold would be concealed in the toilet of the aircraft and from there, it would be retrieved by A­2, a member of Air India Engineering Staff, in the morning at around 0700 hours on that day and thereafter, the above gold would be CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 2 of 85 collected from A­2 by the concerned person. For the purpose of verification, a surprise check team of CBI officials was constituted and had reached at the IGI Airport, where it was learnt by them that the Customs Authorities had also received a similar information from some independent source and as such a joint surprise check was conducted by the officials of CBI as well as the Customs Department.

2. It is alleged in the charge sheet that on arrival of the above Flight No. 732, A­1 was intercepted at the immigration counter of the arrival hall of the airport, after he disembarked from the above flight at around 0240 hrs., and search of the above aircraft was conducted and it resulted into the recovery of 2124.800 gms of gold, which was found concealed beneath the commode in the rear right side toilet of the aircraft, from the entrance of the aircraft, in wrapped condition. The above packet of gold was shown to A­1, who was holder of Indian passport no. Q­2179134, and it was opened in his presence and found to contain 18 biscuits and a small piece of gold, which were later on confirmed to be of gold of 24 caret purity and valuing at about Rs. 8.01 lac.

3. It is further alleged in the charge sheet that a watch was CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 3 of 85 kept on the said aircraft, for a man of the Engineering Department of Air India, who was of a given physical description, as per the information received by the custom officials, and at about 0720 hrs., A­2 had entered the above aircraft and headed towards the above toilet and tried to retrieve the said gold and he was also then apprehended and brought to the hall of the above airport and confronted with A­1 and A­2 then disclosed that he was helping A­1 in smuggling of the gold, by retrieving the gold smuggled by A­1, from the toilets of the aircraft, and further told that he also used to conceal foreign currency inside the toilets for A­1, in furtherance of a criminal conspiracy between them to smuggle the gold. A­1 and A­2 had also allegedly tendered their voluntary statements U/s 108 of the Customs Act Ex. PW6/1 (D16) and Ex. PW3/3 (D15) respectively regarding the above conspiracy and the modus­operandi in smuggling of the gold by them.

4. On the basis of the above, a case for commission of the offences punishable U/s 120B r/w Section 135 of the Customs Act, 1962 and Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1988 (in short, PC Act) was registered against A­1 and A­2 by the CBI vide RC No. 62(A)/95­DLI at around 9:45 AM on the same day. During the investigation of the case, it was found that in furtherance of CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 4 of 85 the above said criminal conspiracy, A­2 used to plant the foreign currency at a convenient place in the aircrafts in which A­1 was to travel, as previously decided between them, and A­1 used to retrieve the said foreign currency amounts while on board and these amounts were used by him for purchasing gold during his visits to Dubai, Hong­Kong and Singapore etc. It was further found during the investigation that A­3, A­4 and A­5 were also part of the above criminal conspiracy and in furtherance of the same, these three accused used to contribute different amounts and help in procuring the above foreign currency amounts to be used for purchase of gold by A­1 and A­4 further used to arrange air tickets for the above journeys to be performed by A­1.

5. It had further transpired during the investigation of the case that on 30.07.1995, before his departure to Dubai by Flight No. AI­735, A­1 handed over foreign currency worth 96000 Dirhams to A­2 for concealing the same in the said flight, so that it could be retrieved by A­1 while on board of the said flight, and the above foreign currency was concealed in the said aircraft by A­2 when he proceeded to Ahmadabad on official duty in the said aircraft on 30.07.1995, which was bearing Flight No. AI­610 for the said flight, and he came back to Delhi from Ahmadabad at about 5:40 AM by the same aircraft having Flight No. CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 5 of 85 AI­611, VT­EJH (Tests) and during these journeys, A­2 had concealed the above foreign currency of 96000 Dirhams in the rear toilet of the above aircraft, with the object that A­1 would pick up the same from the said aircraft during his (A­1) journey from Delhi to Dubai by Flight No. AI­735, in order to unable A­1 to purchase gold at Dubai and smuggle it to India illegally. It is necessary to mention here that all the five accused persons were arrested by the CBI during the investigation of the case and they were subsequently released on bail.

6. Based on the above facts, a charge sheet for commission of the offences punishable U/s 120B r/w Section 13(1)(d) & Section 13(2) r/w Section 13(1)(d) of the PC Act and Section 135 of the Customs Act was ultimately prepared and filed against the accused persons in this court. Except A­2, who was an official of the Engineering Department of Air India and hence, a public servant, all the other four accused persons are private persons and prior to the filing of the charge sheet, the necessary sanctions required U/s 19(1)(c) of the PC Act for prosecution of A­2 and Section 137 of the Customs Act for prosecution of all the accused persons under the said Act were also obtained by the CBI from the competent authorities under the above said Acts. CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 6 of 85

7. The charge sheet was filed in this special court on 08.06.1998 and cognizance of the above said offences was taken by the court on 09.07.1998 and summons to the accused persons were directed to be issued. However, the presence of A­1 could not be secured in the court and after the due execution of the proceedings U/s 82 and 83 Cr.P.C. against him, he was ultimately declared to be a 'Proclaimed Offender' (PO) vide order dated 29.01.2000.

8. The hearing of arguments on the point of charges qua the remaining four accused was concluded only on 16.05.2009 and vide order dated 22.05.2009, a prime facie case for commission of the offence U/s 13(1)(d) punishable U/s 13(2) of the PC Act was found to be made out against A­2 and also the offence of criminal conspiracy to smuggle gold in India, without payment of customs duty, which was brought from Dubai etc by use of foreign currency taken out illegally from India, was found to be made out against A­2 to A­5 and hence, charges against A­2 to A­5 were also directed to be framed for commission of the offence U/s 120A punishable U/s 120B IPC r/w Section 135 of the Customs Act and Section 13(1)(d) r/w Section 13(2) of the above said Act, besides the substantive offence U/s 13(1)(d) punishable U/s 13(2) of the PC Act against A­2. In compliance of the CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 7 of 85 above said order, the charges were actually framed against the above four accused on 27.05.2009.

9. The prosecution/CBI in support of its case has examined on record total 21 witnesses, out of the listed 29 witnesses, and their names and purpose of examination is being stated herein below:­

10. PW1 Sh. Ladha Singh was employed as an Assistant with Air India at the relevant time and he has stated on record that one M. L. Sharma used to come to Flight Dispatch Section and to mention his name as such in the Crew Declaration Form and also to declare his belongings and the details of the flight etc were also mentioned in the above form as per practice. He has identified on record one Declaration Form (D26) of Flight No. AI­611 from Ahmadabad to Delhi and has stated that A­2 was a Crew Member of the said flight and his name is also found mentioned in the passenger list of the said flight on record. However, he did not identify A­2.

11. PW2 Sh. J. C. Sharma is the then employee of Food Corporation of India at Barakhamba Road, New Delhi and he had joined the investigation of this case on 31.07.2015 and is a witness of the CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 8 of 85 disclosure statement Ex. PW2/1(D23) of A­1 recorded by the CBI officials. He has again joined the investigation of the case on 20.09.1995, alongwith his colleague named Sh. Amar Singh, and witnessed the disclosure statement Ex. PW2/2 (D24) of A­2.

12. PW3 Sh. K. S. Garia is the then Air Customs Superintendent (Preventive) of IGI Airport and he had received the information about the above gold to be picked up by an official of Air India having a given physical description. He states that on receiving the above information, he deputed one official named Sh. R. Ravichandran, Air Customs Officer (Preventive), to keep a watch and look out for the above person and he further claims that subsequently one report dated 31.07.1995 Ex. PW3/1 (part of D2) was submitted to him by the above official regarding the apprehension of A­2. He also identifies the signatures of his senior officer on a letter dated 31.07.1995 Ex. PW3/2 (part of D2), vide which the above report was forwarded to the CBI and further claims that the voluntary statement Ex. PW3/3 (D15) U/s 108 of the Customs Act by A­2 was also tendered before him.

13. PW4 Sh. R. Ravichandran is the then Air Customs Officer, who was deputed by PW3 to act upon the above information and he has CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 9 of 85 stated that he was sitting inside the above aircraft and keeping a watch when A­2 entered the said aircraft, after making entry in the register of aircraft, and he had seen A­2 searching the toilets of the aircraft and he further claims to have got A­2 apprehended by the CBI officials, when A­2 came out of the aircraft. He has also proved his report Ex. PW3/1 (part of D2) submitted to his senior officer in this regard.

14. PW5 Sh. V. K. Sachdeva was posted as Deputy Chief Aircraft Engineer at the above airport at the relevant time and he has deposed about the duty schedule of the officials responsible for maintenance of the aircrafts and the procedure for maintenance. According to him, he was on duty with A­2 in the morning shift from 7:00 AM to 3:00 PM on 31.07.1995 and he had conducted the pre­departure checks of the said aircraft and further states that he as well as A­2 had both entered the said aircraft. He has also identified the relevant entry Ex. PW5/1 (D­18) made by him in the register of the said aircraft regarding his entering the aircraft and has stated that the said entry is followed by the entry in the name of A­2. However, he has not identified the handwriting and signatures of A­2 in that entry, though he has identified the above accused.

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15. PW6 Sh. Madan Mohan is also a Superintendent Customs (Preventive) posted at the above airport at the relevant time and it is before him that the statement dated 31.07.1995 U/s 108 of the Customs Act Ex. PW6/1 (D16) made by A­1 was tendered.

16. PW7 Sh. S. V. Anand is the then Regional Maintenance Manager of Air India posted at IGI Airport and A­2 was working as a Foreman under him. He has identified his signatures on photocopies of staff duty rosters Mark PW7/A and PW7/B of Engineering Department of Air India for the month July 1995 and also identified another copy of the duty roster dated 31.07.1995 Mark C (all parts of D­27) and as per these rosters, A­2 was on duty at the IGI Airport on 30.07.1995 and 31.07.1995. He has stated that A­2 was in Group­7 of the engineering staff and the staff number of A­2 was 3322. On being shown the entry Ex.PW5/1 (D­18) of the entry register of the above aircraft regarding PW5 Sh. V. K. Sachdeva, he has also identified the same and has further stated that the above entry was followed by the entry Ex. PW7/A (D­18) of A­2 in the said aircraft.

17. PW8 Sh. A. K. Gandhi is also an Air Customs Officer (Preventive) posted at the airport at the relevant time and he had CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 11 of 85 conducted the search of the above aircraft on 31.07.1995, which led to the recovery and seizure of the above gold from the toilet of the aircraft. He states that the search was conducted in the presence of DSP S. K. Peshin of CBI and two independent witnesses namely Sh. Bhuwan Chand Tiwari and Sh. Sohan Lal and panchnama Ex. PW8/1 (D­3) was prepared in this regard and he has also identified the different signatures appearing on the panchnama. He further deposes about the seizure of the air ticket and boarding pass etc of A­1 and identifies the said documents /articles. Subsequently, this witness was recalled again for his further examination in chief on an application U/s 311 Cr.P.C. filed by the CBI and had also identified the case property.

18. PW9 Sh. Virender Singh was posted as Commissioner of Customs at the relevant time and he has accorded the sanction Ex. PW9/A, U/s 137 of the Customs Act, for prosecution of all the accused persons for the offence punishable U/s 135 of the Customs Act.

19. PW10 Sh. Badre Alam is an ex­employee of one Hotel Azeem (wrongly typed as Azmi in his statement) in Jama Masjid area and he says that A­3 and A­5 used to visit their hotel, where persons intending to visit abroad and vice­versa used to stay. He claims that A­3 CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 12 of 85 and A­5 used to bring Indian currency and to purchase foreign currency from the guests staying in their hotel and in July 1995, both the above accused bought foreign currency worth about Rs. 4 lacs from the guests of their hotel and even prior to that, they bought foreign currencies in exchange of gold biscuits.

20. PW11 Sh. R. C. Gangwal is the Malkhana In­charge of CBI and he has produced on record a copy of the entry no. 49 dated 31.07.1995 of the malkhana register as Ex. PW11/1 (colly), vide which the articles seized by the IO of CBI from the customs official vide receipt Ex. PW8/2 (D­4) were deposited in the malkhana. He has stated that the above entry is in the handwriting of Ct. Mathew and he has also produced on record a carbon copy of the above receipt Ex. PW8/2 from the malkhana and also the packet containing gold Mark A and the currency note of 20 pounds Mark B, which was found with the gold.

21. PW12 Sh. Praveen Kumar is a Sales Executive of Airways Travel (Delhi) Pvt. Ltd. and he has only brought on record one letter dated 05.07.2011 Ex. PW12/A, given by a Director of their company, to the effect that the original ticket register of the month of July 1995, with regard to A­1, was not available.

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22. PW13 Sh. Nemchand was working with the Vigilance Department of NDMC at the relevant time and he was joined in the investigation by the CBI on 08.11.1995 when they visited the above Azeem hotel in Daryaganj area, alongwith some other person. He has identified his signatures on the documents D­28 and D­29, which are the disclosure statement/memo of A­5 and the pointing out memo of the said hotel prepared at the instance of A­5. However, he is hostile on certain other aspects, which will be discussed later on.

23. PW14 Sh. Sanjiv Kumar is an employee of M/s Murti Tour & Travels, Cannaught Place, which was being run by A­4, and he is the nephew of A­4. He was supposed to be a witness of issuance of frequent air tickets by A­4 to A­1, but he is hostile on these aspects and has also denied the making of statement U/s 161 Cr.P.C. Ex. PW14/C to the CBI. He has further refused to identify his alleged handwriting on entry Mark PW14/A (D­19) of their ticket register and another entry Mark PW14/B (D­20) of the said register, which was alleged to be in the handwriting of his colleague Sh. Rachpal Singh, who was jija of A­4.

24. PW15 Sh. Tarunveer Singh Mayal (who was examined in CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 14 of 85 place of one listed witness Sh. Swarn Singh, in terms of the order dated 15.12.2011) is the Director of the above New Airways Travel (Delhi) Pvt. Ltd. and had issued the above certificate Ex. PW12/1 regarding the non existence of the original ticket register of their company. He was shown the attested copies of the entries of issuance of tickets during the period from 24.07.1995 to 01.08.1995 Ex. PW15/A (D­6) and has identified the same to be of their company and to have been attested by Sh. Swarn Singh. He has claimed that as per the above entry, the ticket of A1 dated 29.07.1995 was got issued by them, having purchased from Hans Air Service and having been arranged through their sub­agent Santa Travels. He has also identified the invoice Mark PW15/X (D­22) of M/s Hans Air Service to be drawn on their company, but he was not sure whether the ticket covered by the above invoice was received by their company or not and further if the ticket Ex. PW5/7 (D­13) of A­1 on record was purchased through they company or not.

25. PW16 Sh. Jagdish Singh was posted as Sub Inspector with FRRO at the relevant time and he was on duty of collection of embarkation/disembarkation cards of the passengers. He had handed over 9 such cards, Ex. C1 to C9 on record, to the CBI vide seizure memo Ex. PW16/A dated 06.12.1995 (D­14).

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26. PW17 Sh. Ramesh Krishan Ayyar was attached as Executive Secretary to Sh. J. N. Gagoi, the then Director of Engineering in Air India, who had granted sanction Ex. PW17/A U/s 19(1)(c) of the PC Act for prosecution of A­2. He has identified the signatures of Sh. J. N. Gagoi on the above document as Sh. J. N. Gagoi had already expired in the year 2004.

27. PW18 Sh. Kuldeep Sugandh is a certified goldsmith, who had visited the IGI Airport on 31.07.1995 and had issued the verification certificate Ex. PW8/3 (D­7) on record, regarding the weight and purity of the seized gold.

28. PW19 Sh. S. K. Peshin is the then DSP of CBI and a member of the above joint team of CBI and custom officials, which had apprehended A­1 and had effected the above seizure of gold from the toilet of the above aircraft. He is also the Investigating Officer (IO) of this case. He has deposed in detail on the above aspects, the apprehension of A­2 and is also a witness to the above panchnama Ex. PW8/1 (D­3). He also claims to have been handed over the documents and articles covered by the receipt Ex. PW8/2 (D­4) by the custom CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 16 of 85 officials, proves the FIR Ex. PW19/1 (D­1) and has arrested the remaining accused persons. He also identifies his signatures on various other documents, like the disclosure statement of A­1 Ex. PW2/1 (D­23), disclosure statement of A­3 Ex. PW2/2 (D­24), disclosure statement of A­5 Ex. PW13/A (D­28), pointing out memo Ex. PW13/B (D­29) prepared at the instance of A­5 and had also seized the above embarkation/disembarkation cards Ex. C1 to C9 vide memo Ex. PW16/A (D­14), aircraft entry registers D­17 and D­18 vide memo Ex. PW19/2 (D­25). He has also proved the entry Ex. PW19/3 made by him in the above register D­18, regarding his entering the aircraft, and further identifies the accused persons and the case property. His depositions will also be discussed in detail subsequently.

29. PW20 Sh. Bhuwan Chand Tiwari is one of the alleged two independent witnesses joined in the seizure of the above gold, but, however, he is hostile on many material aspects and his depositions will also be discussed subsequently.

30. PW21 Sh. S. K. Pandey is another Air Customs officer posted at the airport at the relevant time and he is claimed to have been present in his private capacity at the house of A­5 on 31.07.2015, when CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 17 of 85 the CBI officials visited the house of above accused and the accused gave slip to them.

31. After the conclusion of the prosecution evidence, all the incriminating evidence brought on record was put to the accused persons in their statements recorded U/s 313 Cr.P.C. and they all in their separate statements have denied the same either to be wrong or beyond their knowledge.

32. A­2 M. L. Verma has specifically denied the alleged search of toilets of the above aircraft and his apprehension in the manner as claimed by the prosecution witnesses, especially by PW4 Sh. R. Ravichandran. He states that he went to the aircraft as a part of his duty and had gone to the cockpit area of the aircraft only, alongwith his superior Sh. V. K. Sachdeva/PW5, the then Shift In­charge, and remained present only near the cockpit and had never gone towards the rear toilets of the aircraft. He has also claimed that no recovery or panchnama was made in his presence and he was though pressurized to sign the panchnama already made by the officers, but he did not sign the same as nothing happened in his presence. He has also specifically denied the presence of PW4 Sh. R. Ravichandran in the aircraft at the CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 18 of 85 relevant time of his entry and has claimed that no one could have entered the aircraft without making an entry in the concerned register of the aircraft and only he (A­2) and Mr. Sachdeva/PW5 had entered the said aircraft. He has also specifically denied making of his alleged statement dated 31.07.1995 U/s 108 of the Customs Act Ex. PW3/3 (D­15) and it is his case that the same was recorded in the office of DSP Mr. Chaddha on 01.08.1995, after torturing him mentally and physically. He also claims that he was inflicted physical injuries to succumb to their illegal demands and he was also medically examined on the order of the court, where he was produced, and his medical examination disclosed more than 12 physical injuries on his person and he had also retracted his above statement. He has further claimed that he was also forced to sign the said statement and put the date as 31.07.1995 thereon.

33. It is also submitted by him in his above statement that he was taken to CBI office at about 8:30 AM by DSP S. K. Peshin/PW19 and he expresses ignorance about the disclosure statements allegedly made by the other accused persons, except of A­1, while claiming that A­1 did not disclose the name of A­4 in his disclosure statement. He even claims that he had no knowledge about the other accused persons and further that PW19 had wrongly identified the case property in his CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 19 of 85 statement, though he was not a witness to the panchnama. He has also specifically denied having knowledge about the concealing of any gold by A­1 in the toilet of the said aircraft or of any foreign currency by him (A­2) in the said aircraft, as alleged, though he has not denied visiting Ahmadabad from Delhi, as well as back to Delhi from Ahmadabad, in the said aircraft on 30.07.1995, while saying that whenever he traveled in any aircraft on official duty, it was always as a passenger and he had also undergone the security checks and the body frisking. Regarding the above two independent witnesses allegedly joined at the time of seizure, he has expressed his ignorance and has further claimed that both the sanctions Ex. PW9/A and Ex. PW17/A granted under the Customs Acts and the PC Acts have been wrongly granted by the concerned authorities for his prosecution under the said Acts.

34. However, he has specifically admitted that PW5 Sh. V. K. Sachdeva was his senior officer at the relevant time and he (PW5) had checked the said aircraft. He has also admitted his staff number to be 3322 and the making of the entry Ex. PW7/A (D­18) by him in the concerned register of the aircraft at the time of entry in the said aircraft and this entry was made immediately after the entry Ex. PW5/1 (D­18) made by PW5, when he went inside the aircraft alongwith PW5 as a part CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 20 of 85 of his duty. He has specifically denied the allegations that he was not authorized to enter the said aircraft because of the fact that the flights starting with number 7 would normally come from Middle East and he being from the Engineering Staff was not required to enter the said aircraft without any specific complaint and no specific complaint regarding the non functioning of the toilet of the above flight AI­732 was ever received by PW7 Sh. S. V. Anand.

35. He has further claimed in his above statement that he has been falsely implicated in this case while saying that the above flight came from Dubai at 2:30 AM and it was to leave for Calcutta at 7:30 AM, but due to some operational reasons the same was delayed. He has submitted that though he was not supposed to enter the aircraft as per the original schedule as his duty started only at 7:00 AM, but since the flight was delayed, he was asked to accompany Mr. Sachdeva/PW5, who was his senior officer, for a pre­departure check of the aircraft. He has also denied the existence of any criminal conspiracy involving him, as alleged, while saying that their duty roster was prepared by the Engineering Department one week in advance and there was no allegation that he ever tried to get his duty changed to the night shift, to bring the above flight AI­732 within his duty timings. He has also CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 21 of 85 desired to lead evidence in his defence.

36. A­3, A­4 and A­5 in their almost identical statements have all denied their being part of any criminal conspiracy with A­1 or A­2, in furtherance of which they allegedly used to contribute or arrange some Indian or foreign currency amounts and to hand it over to A­1 for purchase of any gold from abroad by A­1, to be smuggled into India illegally, as alleged. They all have stated that the making of the disclosure statement Ex. PW2/1 (D­23) by A­1 may be a matter of record, but the same was extracted from him forcibly. A­3 and A­5 have also denied the making of their alleged disclosure statements Ex. PW2/2 (D­24) and Ex. PW13/A (D­28) respectively while claiming that the same were forcibly extracted from them and nothing in pursuance thereof was ever recovered. They have also specifically denied the pointing of any place, i.e. Hotel Azeem, by PW5 vide the pointing out memo Ex. PW13/B (D­29) and they further specifically claimed that they had never visited the above hotel or PW10 Badre Alam for purchase of any foreign currency, by exchange of gold biscuits or otherwise, to be handed over to A­1 to facilitate the above smuggling of gold, as alleged, and it is further claimed by A­3 and A­5 that PW10 Badre Alam has deposed falsely against them as he himself was an accused in FERA cases. CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 22 of 85 They all have further claimed that the sanction Ex. PW9/A U/s 137 of the Customs Act for their prosecution was wrongly granted. It is also the case of A­4 that he was simply a travel agent by profession and he only used to provide tickets to A­1 for consideration and had also received part payments towards the same, but he has nothing to do with his alleged smuggling activities. Though no defence evidence was desired to be led by A­3 and A­5, but A­4 has desired to lead evidence in his defence, likewise A­2, though, subsequently, he has also not led any evidence in his defence.

37. As stated above, the defence evidence in this case was led only on behalf of A­2 and he has examined himself in his defence on oath as DW1 and has again claimed himself to be innocent and to have been falsely implicated in this case. As per his depositions made on oath, he was working as Shift In­charge Foreman in Air India (Engineering Maintenance) on 31.07.1995 and joined his duty on that day at around 7:00 AM. His office of the Engineering Department was at a distance of about 2­3 Kms from the airport and after reporting there and signing his presence in the office, he reached at the airport area only at around 7:15 AM to 7:20 AM and resumed his duty at the change of the shift from outgoing officers, alongwith his superior Mr. Sachdeva. CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 23 of 85 He has also submitted again in his statement as DW1 that he went inside the aircraft alongwith Mr. Sachdeva and he was following Mr. Sachdeva and went to the cockpit area of the aircraft and though Mr. Sachdeva went inside the cockpit, but he remained present at the door of the cockpit. After Mr. Sachdeva attended to the complaint in the air­ conditioning of the cockpit area, they both came out of the aircraft withing five minutes of entering the same and he did not go to any other area of the aircraft alone.

38. It is further deposed by him that as soon as they both came out of the aircraft, he was apprehended on the Aero Bridge Area by the Customs and CBI officials and without informing him any reasons of his apprehension, he was taken to the arrival hall of the airport and was forced to sign certain papers and was not allowed to read the same and no search of the aircraft was conducted nor anything recovered in his presence. He was further asked to admit that one Ashok Kohli had brought gold from Dubai and he was to retrieve the same from the aircraft where it was concealed, but he refused to admit the above false facts. For one hour, there was a discussion between the CBI and custom officials as to which agency was to handle this case and thereafter, he alongwith A­1 Mr. Kohli (Ashok Kohli) was taken to CBI CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 24 of 85 office and there, they both were tortured the whole day of 31.07.1995 by different officials of CBI and he was forced to admit the connection with gold allegedly brought by A­1 and these enquiries were oral only. However, on the next day, i.e. on 01.08.1995, they were taken to the office of one senior CBI officer Mr. Chaddha and some custom officials were also sitting in the said room and he was forced to write an involuntary statement U/s 108 of the Customs Act and he was also beaten when he refused to write as per their dictation. The statement of A­1 was also being recorded in some other room. He also claims to have been taken to the room of a senior officer of CBI and in his presence, the said senior officer was informed about his confession and making of a statement U/s 108 of the Customs Act and on 01.08.1995, he was produced at the residence of Ld Magistrate at around 6:00 PM and claims to have shown the physical injuries present on his body to the Ld Magistrate, who ordered his medical examination. He has also stated on record that as per the order of the Ld MM, his medical report is Ex. DW1/A and as per this report, there were more than 10 injuries on his person. He also claims to have later on retracted his statement vide his retraction dated 04.08.1995 Ex. DW1/B on record, which was subsequently sent from his judicial custody.

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39. It is also deposed by him that item at serial no. 10 of his personal search memo dated 31.07.1995 Ex. PW1/C on record, which is an entry pertaining to the service of summons U/s 108 of the Customs Act dated 31.07.1995 upon him, was interpolated afterwards. He has specifically stated that he did not know A­1 in the past and never helped him in smuggling of gold. He has also deposed that nobody could have entered the above said aircraft when it was parked at the Bay or inside the hanger without making an entry in the concerned register and further whenever an Air India staff member travels with the aircraft on official duty, he is subjected to detailed search and frisking like any other passenger. He had also filed an application Ex. DW1/D dated 26.02.2015 under the RTI Act in this regard, through his counsel and Ex. DW1/E is the reply furnished to the said application in this regard.

40. Besides the above, when this case was fixed for final arguments, an application U/s 311 Cr.P.C. was moved on 08.07.2015 on behalf of A­2 for bringing on record some other RTI application moved by his counsel and the reply furnished thereto by the Government of India, Ministry of Defence, Department of Revenue, which was stated to be touching upon the competency of the CBI officials to investigate the present case under the Customs Act. The CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 26 of 85 above application was subsequently allowed vide order dated 21.07.2015, on no objection of Ld Sr. PP for CBI, and the copy of RTI application, the original reply furnished by the above Ministry to the said application and one original Gazette Notification dated 27.10.2014 were directed to be taken on record and were exhibited as Ex. PX1, Ex. PX2 and Ex. PX3 respectively.

41. I have heard the arguments advanced by Sh. Prabhat Kumar, Ld Sr. PP for the CBI and Sh. Deepak Gandhi, Ld counsel for all the accused. I have also gone through the evidence led and the other record of the case.

42. The evidence led on record and the challenges made to the prosecution case by Ld defence counsel can be broadly discussed under the following heads:­ (I) - COMPETENCY OF CBI OFFICERS TO ACT UNDER THE CUSTOMS ACT

43. The first ground on which Ld defence counsel has challenged the prosecution story and case is a legal aspect pertaining CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 27 of 85 to the authority of the CBI officers to act under the Customs Act and to be involved in seizure of the above gold effected from the above aircraft and the further investigation of the case. It is argued by Ld defence counsel that the Customs Act is a complete code in itself and only the authorized officers under the said Act are entitled to effect the seizures under the said Act and further to carry out the investigations etc and under the provisions of Section 2(34) of the said Act, 'a proper officer' has been defined who is entitled to perform various functions under the said Act and it means an officer of Customs, who has been assigned those functions by the 'Board' or 'Commissioner of Customs'. The 'Board' as per Section 2(6) of the Act means the Central Board of Excise and Customs constituted under the Central Board of Revenue Act, 1963 and the 'Commissioner of Customs' is also defined U/s 2(8) of the said Act and it includes an Additional Commissioner of Customs, except for the purposes of Chapter XV of the Act. It is the contention of Ld defence counsel that since the officers of CBI were not notified as 'proper officers' under the Customs Act, they were not entitled to effect any seizures, to carry out any investigations or to do any acts under the above said Act and hence, the seizure of above gold and the investigation done by them in this case is illegal and the accused are entitled to be acquitted on this very ground.

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44. On the contrary, the contention of Ld Sr. PP for CBI is that the seizure of gold in this case was actually effected by the custom officers only and this fact is clearly visible from the panchnama Ex. PW8/1 (D­3) on record and the officer of CBI, i.e. the IO/PW19 Sh. S. K. Peshin, is only a witness to the said panchnama and seizure. He has further argued that even otherwise, the CBI is competent to effect a seizure and to investigate an offence under the Customs Act because the CBI has been constituted and works under the Special Police Establishment Act, 1946 (SPEA) and in terms of the provisions of Section 3 of the said Act, it has powers to investigate all the offences or classes offences which have been notified by the Central Government in the Official Gazette and in terms of Notification No. 228/8/89­AVD­II dated 07.09.1989 issued by the Central Government under the above provisions, the Customs Act, 1962 is one of the Central Acts mentioned at serial No.10 thereof, the offences under which the CBI is empowered to investigate.

45. To counter the above arguments of Ld Sr. PP for CBI that the CBI officers are competent to investigate an offence under the Customs Act on the basis of the above Notification dated 07.09.1989, CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 29 of 85 Ld defence counsel has relied upon a judgment of the Hon'ble Supreme Court in case CBI Vs. State of Rajasthan & Ors. 1996 SCALE (5) 2003 and though the above judgment has been given in a case of FERA and in a different context, but a similar question came up for consideration before the Hon'ble Supreme Court in the said case as FERA was also one of the Central Acts included in the above said Notification issued by the Central Government U/s 3 of the SPEA and in the said case also, the investigation was sought to be carried out by the CBI officers. It was held by their lordships in the said case that the above general notification authorizing the CBI to investigate a case under FERA would not be sufficient for the purpose and only the officers empowered by the Central Government U/s 3, 4 & 5 of FERA would be entitled to investigate an offence under the said Act. Hence, their lordships concluded that the CBI officers were not competent to investigate the offences under the said Act. Therefore, on the same analogy, it can also be held in the present that the CBI officers were not competent to either effect a seizure or to investigate any offence under the Customs Act. Though, the seizure of the above gold of this case was not exclusively effected by the CBI officers, as has been argued by Ld Sr. PP for CBI, but even then the same was certainly effected in their presence and with their active participation in the CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 30 of 85 proceedings of seizure as it is the admitted case of the prosecution that the same was effected by a joint team consisting of the CBI and custom officials and merely because the IO/PW19 Sh. S. K. Peshin of CBI has put his signatures on the above panchnama as a witness only, the same will not make it a legal seizure. Ld defence counsel has also rightly relied upon another judgment of the Hon'ble Supreme Court in case of Directorate of Enforcement Vs. Deepak Mahajan 1994 SCALE (1) 294, wherein the above definition of 'proper officer' given U/s 2(34) of the above said Act was acknowledged by their lordships. The judgment in case Kanti Lal Takhatmal Jain & Anr. Vs. State AIR 1970 Bombay 225 being relied upon by Ld Sr. PP for CBI is found to be not applicable to the fact and circumstances of the present case and has been given in a totally different context. Ld Sr. PP for CBI has not been able to cite any other judgment to counter the judgment in case CBI Vs. State of Rajasthan & Ors. (Supra). Hence, the above illegality in seizure of the gold and conducting all the subsequent investigation by the CBI goes to the root of the case and can be made a sole ground for acquittal of the accused in this case.

(II) - NO IMPORT OR ATTEMPT THEREOF

46. The next major challenge made by Ld defence counsel to CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 31 of 85 the prosecution case is on the ground that admittedly no seizure of gold was effected from the possession of A­1 (since PO) or of A­2 and the same, as per the prosecution case, was effected from the said aircraft only and hence, it is his contention that the above gold packet was recovered in an abandoned condition in the toilet of the aircraft and the same cannot be legally termed to have been 'Imported' into India and therefore, no offence at all has been committed by any of the accused persons of import of the same or of even an attempt to import the same. It is argued by him that an offence of import or of an attempt thereof could have been committed by A­1 only when the above gold would have been brought beyond or at the customs check area. On this aspect, he has also referred to the judgments in cases Union of India Vs. Khalil Kecherim, 1970 Crl. L.J. 417 Delhi, Shewbuxrai Onkar Mall Vs. Asstt. Collector of Customs, 1981 (8) ELT 298, Trilochan Singh Vs. Union of India 1981 (8) ELT 667 Delhi and Central India Spinning & Weaving & Manufacturing Co. Ltd. Vs. Municipal Committee Wardha, AIR 1958 SC 341. On the basis of these judgments, it has also been submitted by Ld defence counsel that since in the present case, the above gold was not brought to the barrier of customs at the airport and there was not even an attempt thereof, no import of the goods within the meaning of Customs Act can be said to CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 32 of 85 have been made by A­1 as the import does not merely means bringing into some article in India, but it comprises something more also, i.e. incorporating and mixing up of the goods with the mass of the property in India. Hence, when no illegal import of goods was committed by A­1, the other accused cannot be punished for being a part of any criminal conspiracy to import the same or being concerned with the same, either U/s 120B IPC or U/s 135 of the Customs Act.

47. In this regard, it is observed that the provisions of Section 135 of the Customs Act are very wide in application and it not only makes punishable the persons directly concerned with the illegal import or export of such goods or of any attempts to evade the custom duty payable under the said Act, but it also lays punishment for a person who in any way is concerned with the carrying, removing, depositing, harboring, keeping, concealing, selling or purchasing etc of such goods, as may be liable for confiscation U/s 111 or Section 113 of the said Act. As per Section 111 of the said Act, even any dutiable or prohibited goods found concealed in any manner in any conveyance are liable for confiscation under the said Act. Though the CBI has not seized or produced on record any notification issued under the above said Act to show that the gold was a prohibited article under the said Act at the relevant time, but it has specifically come on record during the statement CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 33 of 85 of PW3 and some other witnesses also that though the gold was not prohibited for import in India as a baggage, but it was restricted with the conditions that the passenger who had come from abroad must have stayed there for not less than six months and the customs duty was payable on the said imported gold in a convertible foreign currency. Hence, the above gold seized in this case clearly fell within the definition of 'prohibited goods' given U/s 2(33) of the said Act, as the conditions subject to which the gold could have been imported into India were not found complied with in this case. The judgments in the cases Khalil Kecherim, Shewbuxrai Onkar Mall, Trilochan Singh and Central India Spinning & Weaving & Manufacturing Co. Ltd. (Supra) being relied upon by Ld defence counsel have been given in a different context and in none of the above cases, the prohibited articles were found in any concealed condition in a conveyance. Hence, this argument of Ld defence counsel is found to be without any merits and bringing of the above gold in a concealed form in India was certainly an offence covered by Section 135 of the above said Act. (III) - STATEMENTS U/S 108 OF THE CUSTOMS ACT OF A­1 and A­2

48. The next challenge put by Ld defence counsel to the CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 34 of 85 prosecution case is that the statements allegedly made U/s 108 of the Customs Act by A­1 and A­2 are legally not admissible in evidence as the same were never made by them voluntarily and rather the above two accused were forced to write down the said statements in their own handwritings by the CBI officials as well as the by the custom officials. It is also argued that the alleged statement U/s 108 of the Customs Act made by A­1 is even otherwise is not admissible in evidence against the other accused persons in the present trial as A­1 has already absconded and he is not being tried 'jointly' with the other accused persons. On the other hand, it is the contention of Ld Sr. PP for CBI that the above statements, though confessional in nature, are very much admissible in evidence against the above two accused, as well as the other co­accused, as the same were recorded by the custom officers and not by the CBI officers as it is well settled that such statements can be relied and acted upon as the custom officers are not police officers and further that the same were also made by both the accused voluntarily and this fact is evidenced from reducing of the said statements by the accused persons in their own handwritings and further from the personal and family details of the above two accused recorded therein.

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49. As far as the legal value of such statements is concerned, it is now well settled that such a statement is very much admissible in evidence and can also be acted and relied upon by the court in a trial under the Customs Act as the custom officers are not police officers. However, it is subject to the condition that such statements are made by the accused persons voluntarily and without the exercise of any force, pressure or coercion etc and these statements can be acted upon not only again the makers thereof, but the other co­accused also.

50. As far as A­1 (since PO) is concerned, his statement recorded U/s 108 of the Customs Act is Ex. PW6/1(D­16) on record and it was recorded on 31.07.1995 itself, i.e. the date on which the above accused was apprehended. As per the prosecution case, A­1 was apprehended sometime after the above aircraft had landed at IGI Airport from Dubai at around 2:20 AM, i.e. the intervening night of 30­31.07.1995, and the time of apprehension of A­1 has been stated on record to be around 2:40/3:00 AM. It is the case of the prosecution that the above statement was tendered by the accused before PW6 Sh. Madan Mohan and as per the said statement, the above accused had appeared before PW6 at around 8:30 AM for tendering the said statement and it was tendered in response to the summons served upon CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 36 of 85 the accused under the above said provisions. However, there is no proof of service of any such summons upon the accused as the same are not a part of the judicial record.

51. The statement U/s 108 of the above said Act allegedly made by A­2 is Ex. PW3/3 (D­15) on record and this statement is also dated 31.07.1995, though the time of making of the statement is not incorporated therein. This statement was made before PW3 Sh. K. S. Garia and though it is also being alleged to have been recorded in response to some summons served under the above provisions, but the prosecution has not brought or proved on record any such summons given to the above accused for his appearance before PW3 for tendering the above statement. Though, during the cross examination of the IO/PW19, one summons in the name of A­2 and signed by PW3 have been brought on record as Mark P19/D­4, but the same were put to the witness for a limited purpose only, i.e. for giving a suggestion that the relevant entry in the copy of personal search memo of the said accused regarding recovery of the above summons in his personal search was interpolated. However, even this summons do not contain or bear any signatures or receiving of A­2, in token of service of the same upon the accused.

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52. Though the above statements are found to be only signed by the respective accused and the officers before the same were tendered, i.e. PW6 and PW3 and not by the IO/PW19 or any other officer of CBI, but it is the admitted case of prosecution that both the accused persons were already apprehended by a joint team of the CBI and the custom officials and the time of apprehension of A­1 is stated to be at around 2:40/3:00 AM, i.e. after the landing of the above aircraft at around 2:20 AM, and that of A­2 at around 7:30 AM on 31.07.1995. As also stated above, the statement of A­1 was recorded at around 8:30 AM and the statement of A­2 was also recorded around the same time. However, there is no arrest memo of any of the above two accused brought or proved on record during the evidence which could have shown the exact time of arrest of the above two accused by the CBI officials in this case as according to the prosecution case, after recording of the above statements of the accused, the investigation of the case, alongwith the relevant documents, was transferred to the CBI. However, in the absence of their being any clear evidence on record regarding the exact time of arrest of the accused in this case, there is every reason and ground for concluding that the above statements of the accused are hit by the provisions of Section 24 and 25 of the CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 38 of 85 Evidence Act as the evidence led on record is not sufficient to establish that the same were recorded prior to arrest of the accused persons by the CBI officers or to rule out that the CBI officers were not physically present at the relevant time of recording thereof, as the same being confessional statements are bound to be tested on the touchstones of the said Sections. Hence, though these statements were not formally signed by any official of CBI, but the prosecution has failed to rule out the presence of CBI officials at the place and time of tendering these statements and hence, these statements are liable to be discarded on this ground alone.

53. Moreover, Ld defence counsel has also rightly argued that the above statement Ex. PW6/1 (D­16) made by A­1 is even otherwise not legally admissible in evidence against A­2 or any other co­accused as in terms of Section 30 of the Evidence Act, the same could have been used against the other co­accused only when the above accused was on a 'joint trial' with the other co­accused. It is again reiterated here that A­1 could never be brought before this court for facing trial as his presence could never be secured in the court after filing of the charge sheet and he was ultimately declared to be a Proclaimed Offender (PO). Hence, even as per Section 30 of the Evidence Act, the above CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 39 of 85 confessional statement of A­1 is of no use to the case of the prosecution, which is even otherwise a very weak peace of evidence, and Ld defence counsel has rightly relied upon a judgment of the Hon'ble Supreme Court in case of Mohd Khalid Vs. State of West Bengal (2002) 7 SCC 334:2002 (6) SCALE 238.

54. Now again coming to the statement Ex. PW3/3 (D­15) of A­2, there are certain other grounds also visible from the record for discarding the said statement. It is the case of this accused from the very beginning that the above statement was extracted from him under coercion and by giving physical beatings by the CBI and custom officials and though the suggestions given to some of the prosecution witnesses in this regard have been denied by them to be incorrect, but the above accused himself has also made specific claims in this regard during his statement recorded U/s 313 Cr.P.C. as well as when he stepped into the witness box as DW1 on oath. During the course of his defence evidence, he has also duly proved on record one application dated 01.08.1995 moved by him before this court seeking his medical examination and he therein had made specific allegations of beatings against the CBI officials and the court had also directed him to be medically examined. His medical examination report given on the CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 40 of 85 reverse/back side of the above application is also Mark P19/D6 on record and though the doctor concerned has not been summoned or examined by the accused in his defence, but this document is not disputed by the prosecution and formed part of the judicial record itself as the medical examination was directed on the directions of the court itself. As per his medical examination report, total ten injuries, mainly contusions on different parts of the body, were found to be present on the person of A­2 in his above medical examination. The very presence of these injuries on his person on the very next day of his arrest, as well as on the very first day of his production in the court, is a strong circumstance to show that he was subjected to physical torture while he was in the custody of the CBI and custom officials and hence, there is every reason to doubt and discard the above statement of the accused because of the same as there is every probability that the accused was forced and beaten for tendering the said statement and to admit his involvement in the case. Ld defence counsel has also rightly relied upon a judgment of the Hon'ble Supreme Court in case Sevantilal Karsondas Modi Vs. State of Maharashtra & Anr. 1979 (2) SCC 58, wherein it was held that a confessional statement made to the officers of the Customs Department as a result of coercion was bad and the same could not form the basis of conviction U/s 120B IPC r/w Section 135 of CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 41 of 85 the Customs Act. Moreover, one application dated 04.08.1995 of the above accused addressed to the Controller of Customs, which is Mark P19/D7, is also a part of the judicial record and it is the application of the accused retracting from his above confessional statement and though this document is in the form of a photocopy, but since it is the document of the prosecution itself filed alongwith the charge sheet, it can certainly be seen and looked into by the court and in view of the same, the accused is also held to have retracted his above confessional statement at the earliest, i.e. just within four days of the making thereof, and therefore, the same cannot be given any weigh for this reason also.

55. In view of the above, it is held that the above confessional statements made U/s 108 of the Customs Act by the above two accused are not found to be made voluntarily or legally admissible in evidence and hence, the same cannot be used by the court against the above two accused or any other co­accused for any purposes, in support of the case of the prosecution.

(IV) ­ SECRET INFORMATION ­ THE BASIS OF THE PROSECUTION CASE

56. The next ground on which the prosecution story and CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 42 of 85 evidence is found to be lacking in reliability is the evidence pertaining to the receipt of the above secret information. As per the admitted case of the CBI, a secret information regarding the concealment of the above gold was received by them and though in the FIR Ex. PW19/1 (D­1) or in the charge sheet, it is not specifically mentioned as to by whom the said information was received, but during the statement made by the IO/PW19 Sh. S. K. Peshin, it has specifically come on record that they had gone to the airport on the directions of the SP, who had received the above information. It is still not clear from his depositions as to whether the above SP had himself received the information directly from any informer or it was first received by any other officer of CBI and then communicated to the SP. Though, the IO/PW19 also states that he himself had read the said information and a file was also prepared in the department regarding the information, but no such written information was ever filed or proved on record. In the absence of the same, it is not possible to know the actual contents of the said information, though the statement of the IO/PW19 even suggests as if he had carried the said information with him to the airport premises as he states during his cross examination that the said information was not handed over by him to the Assistant Collector (Preventive), Customs at the airport. CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 43 of 85

57. Again, there are found to be some other material discrepancies in the prosecution story regarding the said information, which makes the very basis of the prosecution case to be doubtful. As per the contents of the FIR Ex. PW19/1(D­1), the secret information received by the CBI was to the effect that A­1 would be transporting the above gold by concealing the same in the toilet of the above aircraft and the said gold would be subsequently retrieved by A­2 and the names of both these accused are found specifically mentioned in the FIR. Even in the panchnama Ex. PW8/1 (D­3) prepared subsequently, i.e. after the recovery of the above gold from the aircraft, the names of these two accused persons are found to be specifically recorded therein. The same are also found mentioned in the charge sheet prepared and filed in the court after the conclusion of the investigation.

58. However, besides the names of the above two accused, the physical description of A­2 is also found recorded in the panchnama Ex. PW8/1 (D­3), though the same is not found recorded either in the FIR or in the charge sheet. As per the panchnama Ex. PW8/1 (D­3), the physical description of A­2 is given as having 5'4" height, heavy built, baldy, clean shaved and of fair complexion, besides giving of his name as M. L. Verma, and it is also recorded therein that he is an employee of CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 44 of 85 Air India Engineering Staff. Even during the course of his examination in chief recorded in this court, the IO/PW19 has specifically stated on record that as per the information, the gold was to be subsequently retrieved by one M. L. Verma, an employee of the Engineering Department of Air India. However, during the course of his cross examination recorded on 03.10.2012 on behalf of A­2 (wrongly recorded as A­1, who was already PO), he was specifically questioned by Ld defence counsel in this regard and has admitted it to be correct that the name of accused M. L. Verma was not specifically mentioned in the said information, but only his particulars and description were mentioned. Even during the depositions of two other material witnesses of the prosecution story pertaining to the Customs Department, i.e. PW3 Sh. K. S. Garia and PW4 Sh. R. Ravichandran, they have only deposed about the physical description of the person who was to pick up the above concealed gold and as per them, the said person was of slightly stockily/heavily built and of wheatish complexion and they have nowhere stated that the name of the accused M. L. Verma was already known to them, either from the information received by the CBI or that which was received by the officials of their own department. Again, as per PW4 it was at around 4:00/4:30 AM when he was asked by PW3 to keep a watch for the above person in the aircraft, whereas PW3 states on CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 45 of 85 record that the above information came to his knowledge through CBI only at about 7:00 AM, though he was not able to tell the name of the officer of CBI who conveyed it to him. These depositions of PW3 also destroy the prosecution story about constitution of a joint team and seizure of gold prior to the above time. Further, as per PW8 Sh. A. K. Gandhi, the secret information in their department was received by PW6 Sh. Madan Mohan, but PW6 has not made any such claim during his statement made in this court. The above discrepancy in the prosecution story is a material discrepancy and makes the very basis of its case to be doubtful and also adversely affects the credibility of the statement made by the IO/PW19 and the authenticity of the above material documents of the prosecution.

(V) ­ DISCLOSURE STATEMENTS OF A­1, A­2 AND A­5

59. Apart from the above statements Ex. PW6/1 (D­16) and Ex. PW3/3 (D­15) made by A­1 and A­2 respectively U/s 108 of the Customs Act, there are also certain other confessional statements of the accused persons recorded during the course of investigation of the case, which have to be considered and tested by this court in the light of the relevant law on the subject. It is the admitted case of the CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 46 of 85 prosecution that sometime after the recording of the above statements of the two accused under the Customs Act, the investigation of the case was formally taken over by the CBI and the IO/PW19 had also taken over the custody of the above two accused as well as of all the relevant documents of the case from the custom officials. During the course of examination of the IO/PW19, he has duly proved on record one receipt of different articles and documents from the custom officials as Ex. PW8/2 (D­4) and it is this document vide which the seized case property, the original panchnama Ex. PW8/1 (D­3) and different articles recovered from the possession of A­1, like his passport, air tickets and boarding pass etc which are Ex. D7 to Ex. D13 on record, were handed over to the IO/PW19. Besides the above, the original statements U/s 108 of the Customs Act made by the accused persons and one report Ex. PW3/1 (D­2), which was prepared by PW4 and submitted before PW3 and is regarding the apprehension of A­2, was also handed over by the custom officials to the CBI vide letter Ex. PW3/2 (D­2) on record. The IO/PW19 has also stated on record that thereafter, he had taken the above documents and the case property to the office of CBI, alongwith both the above accused.

60. As already discussed above, no arrest memo of the above CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 47 of 85 two accused, or of any other co­accused, is a part of the judicial record and hence, the actual time of arrest of the accused persons is not ascertainable. Further, though, no disclosure statement of A­2 recorded by the CBI is brought or proved on record, but one disclosure statement Ex. PW2/1 (D­23) of A­1 dated 31.07.1995, which is the day of registration of this case itself, is duly proved on record during the depositions made by the IO/PW19 as well as of PW2 Sh. J. C. Sharma, who was an employee of Food Corporation of India, Barakhambha Road, at that time and a witness to the above document. However, it is also observed that the IO/PW19 has signed the said statement as a witness only as this document suggests as if the same has been recorded by one SI Vipin Kumar of CBI, who has not been examined on record. In any case, the above statement was made in the presence and before the CBI officers and it has also been recorded after the arrest of the above accused in this case and it is also found specifically recorded in the above statement itself that it was made by the accused while being in police custody. Hence, this disclosure statement of A­1 is hit by the provisions of Sections 24 and 25 of the Evidence Act, unless it leads to the discovery of any new facts and in that case also, only that part of the statement which so leads to discovery of such new facts can be said to be admissible in evidence against the accused persons. CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 48 of 85

61. As per this statement, A­1 is alleged to have confessed therein that he had gone to Dubai by flight no. 735 on 30.07.1995 and one day prior to that, A­5 had given him foreign currency of 9.25 lac, which he handed over to A­2 on the same day, for concealing the same in the aircraft. He had also disclosed therein that in the above foreign currency amount of Rs. 9.25 lac, an amount of Rs. 2 lac was contributed by A­3, Rs. 6.35 lac were contributed by A­5 and one Subhash (not an accused in this case), A­4 contributed Rs. 75,000/­ and arranged his air tickets and he (A­1) himself had contributed a sum of Rs. 35,000/­ and all the above amount was handed over to him by A­5 on 29.09.1995 at his residence and he can get the above accused persons arrested in this case. However, it is the admitted case of the prosecution, as well as specifically deposed by the IO/PW19 in his statement, that no recovery of anything incriminating was effected by the CBI officials in pursuance of the above disclosure statement. There was also no question of recovery of any of the above foreign currency amounts because as per the prosecution case, it is the same amount which was subsequently concealed by A­2 in the said aircraft, while being on board of the said aircraft/flight on its route to Delhi­Ahmadabad­Delhi on 29.07.1995, and was then picked up by A­1 when he went to Dubai in CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 49 of 85 the said aircraft/flight on 30.07.1995 and this amount was spent by A­1 in purchase of the above recovered gold. A­1 was not even taken to any place by the CBI officials for effecting any recovery in pursuance of the said statement.

62. One other disclosure statement proved on record was allegedly made by A­3 and the same is dated 20.09.1995 and is Ex. PW2/2 (D­24) and this statement is claimed to have been recorded by the IO/PW19 and is further witnessed by PW2. In this statement, A­3 claims that on 27.07.1995, he had delivered an amount of Rs. 2 lac to A­1 at his residence for purchase of gold from Dubai and besides this, Rs. 6.25 lac were given by A­5 and A­5 had further got arranged Dirhams valuing 9.25 lac for A­1, prior to the visit of A­1 to Dubai. As seen from the contents of these statements, the same are found to be contradictory on certain aspects with regard to the amounts of contributions made by different accused and the days of handing over of these amounts to A­1. Both these statements are being alleged to have been tendered in the presence of PW2 and the disclosure statement Ex. PW2/2 (D­24) made by A­3 is further witnessed by one Sh. Amar Singh, who was a colleague of PW2 and has not been examined on record by the prosecution. PW2 during his examination was not able to tell the CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 50 of 85 complete contents of these statements and was also not able to remember as to in whose handwriting the said statements were written, his time of arrival in the CBI office or the time of recording of these statements and he was even not able to tell if the same were recorded in the forenoon or in the afternoon. He has also stated that no entry was made or signatures were put by him in any register etc in token of his presence in the CBI office at the relevant time nor he states that the above two accused were taken to any place for effecting any recovery in pursuance to the said statements. There is also found to be a gap of about 50 days in recording of these statements and the prosecution has also not proved on record any arrest memo or other document showing the date of arrest of A­3 and it is also not clear as to when the name and complete particulars of A­3 were already disclosed in the disclosure statement Ex. PW2/1 (D­23) dated 31.07.1995 made by A­1, why they had taken so much time in effecting the arrest of A­3 or of the other accused persons. In any case, in the absence of recovery of any incriminating articles or material at the instance of the above two accused and in pursuance of their above disclosure statements, these two documents are not of any use or help to the case of the prosecution.

63. Apart from the above two disclosure statements, one other CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 51 of 85 disclosure statement proved by the prosecution on record is that of A­5 and the same is Ex. PW13/A (D­28) dated 08.11.1995. This statement is also found to be recorded by the IO/PW19 and is further witnessed by PW13 Sh. Nem Chand, who was an official of the Vigilance Department of NDMC. As already discussed above, the name of A­5 was also earlier disclosed to the CBI officials by A­1 in his disclosure statement Ex. PW2/1 (D­23) dated 31.07.1995 and the statement Ex. PW13/A (D­28) of A­5 has been recorded more than three months thereafter. The arrest memo of this accused is also not proved in evidence and hence, the actual date of arrest of A­5 is not on record, but admittedly this statement was also recorded after his arrest and while he was in the custody of the CBI officials. In this statement, A­5 has allegedly confessed that A­1 earlier used to sell him electronic articles brought from foreign countries at his shop, but for the last sometime, A­1 was bringing gold biscuits for him. A­5 has also stated therein that A­1 had brought three biscuits in each on his foreign trips and he (A­5) had paid 1.5 lac for each trip to A­1 in foreign currency and A­1 was also bringing gold for A­3 and A­4. He is further alleged to have disclosed therein that A­2 was assisting A­1 in the smuggling of gold by concealing the foreign currency amounts in the aircraft and the gold brought for him by A­1 was being sold by him to one Badre Alam/PW10, who was an employee at CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 52 of 85 Azeem Hotel in Jama Masjid, and Badre Alam also used to arrange foreign currency for him, which he further handed over to A­1 for bringing the gold.

64. It appears from the record that on the same day, A­5 was also taken by the IO/PW19 to the above Azeem Hotel in Jama Masjid area in the presence of PW13 and there he had pointed out the place where Badre Alam used to sit in the said hotel, but Badre Alam could not be apprehended as they were informed by the Manager of the concerned hotel that he had already left the said hotel after a raid on 01.10.1995. The pointing out memo of the above place/hotel is Ex. PW13/B (D­29) on record. It is well settled that the pointing out memo in itself is not an incriminating evidence against the accused, and so is also the above disclosure statement of A­5 Ex. PW13/A (D­28). Moreover, the depositions made by PW13 make even the preparation of the above memo at the instance of A­5 to be doubtful as in his statement made in the court, he has turned hostile on certain material aspects and though he has identified his signatures on the above documents Ex. PW13/A and Ex.PW13/B, but he has failed to prove the contents thereof or to link the same with A­5 as he went on to state that nothing was pointed out by anyone nor anything was disclosed by CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 53 of 85 anyone to CBI officers in his presence and had only signed the above documents under the pressure of CBI.

65. As stated above, the name of the above Badre Alam had also figured during the investigation and it had come in the above disclosure statement Ex.PW13/A (D­28) made by A­5. Even he could have been an accused in this case as per the parameters adopted by the CBI because the allegations against him were that he was assisting the other accused persons in disposing of the smuggled gold and in purchase of illegal foreign currency from the guests staying in the said hotel. However, somehow he has only been examined as a witness by the CBI in this case and has stepped up into the witness box as PW10 and he deposed that A­3 and A­5 used to visit the above Azeem Hotel, where he was earlier working, and he used to assist them in purchase of foreign currency from the guests of their hotel, either in cash or gold biscuits. He also states that lastly, these two accused visited their hotel in July, 1995 and purchased foreign currency of Rs. 4 lac and for which these two accused contributed Rs. 2 lac each. These depositions made by him are again in contradiction to the contents of the above disclosure statements of the above two accused as it was stated therein that foreign currency of Rs. 9.25 lac was arranged and that two by A­5 only. CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 54 of 85 It has also been brought to the notice of the court by Ld defence counsel during the course of arguments, and also admitted on behalf of the CBI, that PW10 himself has been made an accused in some cases under FERA and hence, the above depositions being made by him in this court cannot be given much weight for the above said reason, and also because of his role played in the above alleged transactions, as per the contents of the above disclosure statement made by A­5. Moreover, there is no independent evidence or material on record to corroborate these depositions made by him. When he himself was initially projected as an accused, the appropriate course available to the prosecution was that he should have been made an accused and then an approver, with the permission of the court, so as to make his depositions admissible in evidence, to the extent and within the limitations, as permitted by the law. The depositions being made by him in this court to the effect that he was not aware that the purchase or sale of foreign currency against gold or cash without license was illegal are not believable as the factum of his prosecution under FERA nullifies its effect and also affects his credibility as a witness. In view of the above, even these two documents Ex. PW13/A (D­28) and Ex. PW13/B (D­29) cannot help the prosecution case.

CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 55 of 85 (VI) ­ EVIDENCE REGARDING SEIZURE OF GOLD FROM THE AIRCRAFT AND APPREHENSION OF A­1

66. As already discussed above, the seizure of the above gold from the aircraft and the apprehension of A­1 from the arrival hall of the airport was made by a joint team consisting the officials of CBI as well as the Customs Department. The scheduled time of landing of the above aircraft at the airport was 2:20 AM in the intervening night of 30­31.07.1995 and though the exact time of arrival of the CBI team at the airport is not clear, but it becomes visible from the depositions of the IO/PW19 that they had arrived there much prior to that as he claims to have met the Assistant Collector (Preventive), Customs and also deposes about the constitution of the joint team etc, besides joining of the two independent witnesses prior to the landing of the air craft. Out of the above witnesses of the prosecution examined on record, the IO/PW19, PW8 Sh. A.K. Gandhi and PW20 Sh. Bhuwan Tiwari are the relevant witnesses of the prosecution, who were alleged to be present at the time of seizure of the above gold. However, as far as the apprehension of A­1 from the arrival hall is concerned, it appears that only the testimony of the IO/PW19 may be relevant in this regard as no other witness examined on record has made a specific claim of his CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 56 of 85 being present in the arrival hall of the airport at the relevant time of apprehension of A­1.

67. The depositions made by the IO/PW19 suggest that A­1 was first apprehended by them and only thereafter, they had proceeded towards the aircraft. He further states that the rear toilet towards the right side of the aircraft was checked thoroughly and a packet wrapped in black tape was found in the space between the toilet seat and the washbasin and it was removed from there and further though the left side toilet of the aircraft was also checked, but nothing recovered therefrom. He further deposes on record that the recovered packet was then brought out of the aircraft and shown to the accused Ashok Kohli, who was in the arrival hall, and the packet was opened and it was found to contain 18 gold biscuits, a small piece of gold in another small packet wrapped with a tape and a paper slip containing some numerals was also found therein. He also deposes about the examination and valuation etc of the above gold by an expert called there and the preparation of panchnama Ex. PW8/1 (D­3) etc and identifies the different signatures appearing on various documents, including the documents recovered from the possession of A­1, and also the case property.

CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 57 of 85

68. PW8 Sh. A. K. Gandhi is the then Air Customs Officer (Preventive) and he claims to have actually effected the above seizure of gold from the toilet of the aircraft, in the presence of the IO/PW19 and two independent witnesses Sh. Bhuwan Chand Tiwari and Sh. Sohan Lal. As per him, the above aircraft landed at about 2:40 AM and thereafter, all the passengers disembarked therefrom and then the aircraft was rummaged and recovery made by the joint team of the Customs Department and the CBI officials. He also states specifically that this recovery was effected in the presence of the IO/PW19 and the above two independent witnesses and A­1 was not present in the aircraft at that time and it is only when he (PW8) had arrived in the arrival hall, alongwith the above recovered packet, that he came to know that A­1 has already been intercepted at the green channel exit. He also deposes about the details of the recovered gold, its examination, purity, valuation and weight etc and further claims to have prepared the above panchnama Ex. PW8/1 (D­3) in his own handwriting, which was witnessed by the above two witnesses and the IO/PW19, and has also identified the different signatures appearing on the said panchnama and some other documents.

CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 58 of 85

69. When the depositions of these two witnesses are appreciated in entirety, there appears to be some serious contradiction in the prosecution story because going by the statement of the IO/PW19, A­1 was first apprehended and then the seizure of the above gold was done by them, whereas if the depositions of PW8 are believed, the same suggest as if the seizure of gold was effected first and A­1 was apprehended from the arrival hall, either subsequently or simultaneously by some other person or may be prior to that. Even if the depositions of PW8 are taken to construe that A­1 was already apprehended prior to effecting the above seizure of gold by them, there is no explanation on record as to why A­1 was not made to accompany the above joint team to the said aircraft for recovery of the above gold or for pointing out of the particular place were the gold was actually concealed by him. Going by the evidence led on record, the recovery of gold and apprehension of A­1 from the arrival hall are two different facts and the failure of the IO/PW19 or of the custom officials to reasonably connect the above two aspects has seriously effected the case of the prosecution on this aspect as when they had already apprehended A­1, he should have easily guided the above joint team to the toilet of the said aircraft and to the place where the above gold packet was lying concealed, but due to unnecessary haste shown by the members of the team, the evidence CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 59 of 85 led on record miserably fails to connect the above recovery of gold with A­1. Besides the IO/PW19, no other witness examined on record, including all the officials of the Customs Department, has even specially claimed himself to be physically present at the time of apprehension of A­1.

70. Though, during the cross examination of the IO/PW19, it has been stated by him on record that the reasons for showing urgency in retrieving the gold from the aircraft were that it was required to be retrieved before A­2 could have entered the aircraft and retrieved the same or to prevent it being pilfered by some other cleaning staff of the aircraft, but these reasons do not appeal to this court as the alleged time of retrieval of the gold by A­2, as per the information, was only after 7:00 AM and since a joint team had already started to act, they could have reasonably prevented the entry of any other member of Air India staff in the above said aircraft.

71. As stated above, apart from the above two witnesses, PW20 Sh. Bhuwan Chand Tiwari is also an alleged independent witness of the seizure of above gold. The other independent witness Sh. Sohan Lal has not been examined by the prosecution on record. However, CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 60 of 85 even the depositions made by PW20 do not in any way strengthen the case of the prosecution regarding the seizure of the above gold and rather the same do more damage to their case. The first point affecting the credibility of this witness is that his very independence is under clouds because he has specifically stated on record that on the day of seizure, he was working in the canteen of the Customs Department at the IGI Airport and though he has also stated that he was working under a contractor and it was not a government canteen, but, in any case, since it was a canteen of the Customs Department, he cannot be considered to be an entirely independent witness of the seizure and the possibility cannot ruled out that he had acted or participated in the said proceedings under the influence of the custom officers or due to the compulsions of his employment as such. Again, his depositions made on record are found to be self­contradictory in nature on the aspect as to whether it were the custom officials who had joined him in the proceedings or he was joined by the CBI officials. He even went on to state that Sh. A. K. Gandhi was not an officer of the Customs Department, but was a CBI officer.

72. Regarding the seizure of the above gold, he deposes in his examination in chief that he was called in the arrival lounge of the airport CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 61 of 85 and from there, he was taken inside the aircraft where a packet was recovered from behind the toilet seat and it was a packet consisting of tape around the objects and the packet contained gold, which was seized. He also deposes about the preparation of some documents in this regard and obtaining of his signatures thereon and further identifies his signatures on the panchnama Ex. PW8/1 (D­3) as well as the cloth wrapper of the sealed parcel of case property Ex. PW8/8. However, he has not supported the case of the prosecution in entirety and was got declared hostile by Ld Sr. PP for CBI on various material aspects. Apart from the other things, he has also taken a contrary stand regarding the recovery of the above seized gold from the aircraft in his presence, during his such cross examination conducted by Ld Sr. PP for CBI, as he has stated on record that while being taken to join the above proceedings, he had been informed that he was being taken to show gold. He has also stated on record that though the gold was shown to him, but the gold was wrapped in tape was never recovered in his presence, from behind the toilet seat of the above aircraft. He has further stated in his depositions made in his cross examination by Ld Sr. PP for CBI that the custom officers, alongwith the CBI officers, had gone towards the aircraft and he as well as the other witness Sh. Sohan Lal had though also been taken by them, but they were only shown the gold CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 62 of 85 after it was taken out of the aircraft, and it had not been shown to them inside the aircraft. He was even confronted by Ld Sr. PP for CBI with his statement U/s 161 Cr.P.C. Mark PW20/A made to the IO during the investigation, but he had stood firm on his above stand that the said packet of gold was not recovered from the aircraft in his presence. Even during his cross examination conducted by Ld defence counsel, he has taken the same stand that the above said gold was not actually recovered from the aircraft in his presence. The above depositions made by this witness do more damage to the prosecution case than that of any other witness as he was a witness who was alleged by the prosecution itself to be an independent witness of the above seizure.

73. There is one other aspect also touching up this witness, which is visible from the evidence led on record and which makes even the presence or participation of this witness in the recovery and seizure proceedings to be doubtful. It is the absence of his signatures in the entry register of the said aircraft. As already stated above, it is the case of the prosecution itself that one entry register of the said aircraft was being maintained with the aircraft and everybody who entered the aircraft was made to make an entry in the said register before entering the same, though it is also their case that PW4 Sh. R. Ravichandran CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 63 of 85 being a custom official was not required to make any entry in the said register. The prosecution has also proved on record the relevant entries Ex. PW5/1, Ex. PW7/A and PW19/3 (all parts of D­18) with regard to the entry of PW5 Sh. V. K. Sachdeva, A­2 M. L. Verma and that of the IO/PW19 Sh. S. K. Peshin respectively. However, no entry is found to be made or proved on record to show that this witness has also entered in the said aircraft, as is being projected by the prosecution. Though the prosecution can be heard in saying that PW4 Sh. R. Ravichandran being a custom official was not required to make any entry in the said register, but they cannot be heard in saying that no entry even in respect of PW20 was required to be made when even the IO/PW19 Sh. S. K. Peshin of CBI is found to have made an entry in the said register.

74. A careful perusal of the above entry register (D­18) of the said aircraft also unfolds certain other lies of the prosecution story. Though the stand of the prosecution is that PW4 Sh. R. Ravichandran or any other officer of Customs Department was not required to make any entry in the said register as the aircraft was parked in the customs area, but it is observed by the court that the names of PW3 Sh. K. S. Garia, PW4 Sh. R. Ravichandran PW8 Sh. A. K. Gandhi, one Sh. L. K. Manchanda and one Sh. Paramjeet Singh are found to be written at CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 64 of 85 serial nos. 6, 9, 10, 7 and 8 respectively of the said register pertaining to to the above aircraft and it is also endorsed against the said names that all these officials are of the Customs Department. However, the timings of entry of these officials as well as of their exit are not found recorded therein and even the signatures of all of them are not there against the said entries as only one signatures are found to be put collectively against these entries and it is not clear as to who had put these signatures. Since the prosecution has not proved the said entries pertaining to these officials, the same cannot be read in evidence against the accused persons, but these certainly can be read against them as it is their own document and it seriously affects the credibility of the prosecution story and witnesses to the extent that no entry was required to be made in the said register in respect of custom officials. Further, the above entries at serial no. 6 to 10 are found to be made after entry at serial no. 5 of some H. D. Bhagat, who had entered the said aircraft at 3:10 AM, and the entry at serial no. 11 in respect of one Dinesh Jidani shows the time of his entry in the aircraft to be 3:05 AM. It appears from the above entries that these custom officials might have also entered the said aircraft around 3:05 AM and 3:10 AM, whereas strangely enough, the entry Ex. PW19/3 regarding the IO/PW19 is found to be made after the entry at serial no. 43 of the said register (serial no. CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 65 of 85 43 is in respect of the entry of one D. K. Banerji and the numbers of the subsequent entries are not found written) and the time of entry of the IO/PW19 in the said aircraft is mentioned as 3:30 AM. It is crystal clear from the above entries that the IO/PW19 had not actually entered the said aircraft alongwith any of the above custom officials and this seriously affects the credibility of the prosecution story as a whole and that of the IO/PW19 himself in particular, about seizure of gold by a joint team of CBI and Custom Officials.

75. Therefore, the above evidence led on record regarding the recovery of the above gold and the apprehension of A­1 from the arrival hall of the airport at the relevant times and in the manner, as claimed by the prosecution, is found to be highly contradictory in nature and the same cannot be accepted for making basis of conviction of the accused persons for the alleged offences.

(VII) ­ EVIDENCE REGARDING THE APPREHENSION OF A­2 M. L. VERMA

76. The next thing on which the evidence led by the prosecution on record is found to be lacking in credibility and consistency is CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 66 of 85 evidence regarding apprehension of A­2. The depositions made by PW3 Sh. K. S. Garia, PW4 Sh. R. Ravichandran and the IO/PW19 are most relevant on this aspect, but when the same are considered in entirety, it make the case of the prosecution to be more doubtful. As per PW3 on receiving of the above information about the concealed gold in the said aircraft and also about its retrieval by an official of Air India, he had deputed his subordinate/PW4 Sh. R. Ravichandran to have a watch and look out for the person who would enter the said aircraft for retrieval of the gold. He has also stated in his examination in chief itself that he was not present there, either inside or near the said aircraft, but he had been keeping a watch on the aircraft from a distance. He also claims that subsequently PW4 and the CBI personnel had appeared before him and produced the person apprehended by them, i.e. A­2, and PW4 had further submitted his report Ex. PW3/1 (D­2) to him regarding the same.

77. PW4 Sh. R. Ravichandran is the most relevant witness on this aspect as he claims that on being deputed so by PW3, he was sitting inside the aircraft itself and was waiting for the above official of Air India, who was to retrieve the concealed gold. He claims that at about 7:15 AM, he saw a person matching with the description of the said person entering the aircraft, after making an entry in the entry register of CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 67 of 85 the aircraft, and thereafter, the said person proceeded towards the right hand side toilet situated at the rear of the aircraft and started meddling with the toilet seat while sitting in a crouched position and subsequently the said person also went to the left side toilet of the aircraft and did likewise. He has further stated that when the said person came out of the aircraft, he (PW4) had gestured to the CBI officials waiting outside the aircraft and then the said person was apprehended and taken to the arrival hall of the airport and he had produced the said person, i.e. A­2, as well as his report Ex. PW3/1 (D­2) before his senior officer/PW3. Both the above witnesses have also identified A­2 during their depositions made in the court.

78. However, it is observed from their statements that though PW4 claims that he was deputed to keep a watch on the aircraft by PW3 at around 4:00/4:30 AM on 31.07.1995, but it is the claim made by PW3 that it was only at around 7:00 AM when he was apprised about the above secret information by the CBI officials, as already discussed above. Again, it has also been already discussed that the depositions of these witnesses regarding the availability of the name of A­2 in the said secret information are also found to be in contradiction with the statement made by the IO/PW19 and the other documentary evidence CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 68 of 85 led on record. Even the physical descriptions of A­2 given by them in this court, or as alleged in the above secret information, are not found to be matching with the physique of A­2. Again, PW3 contradicts himself on the aspect of his observing the said aircraft as though in his examination in chief, he has stated on record that he was keeping a watch on the aircraft from a distance, without being present inside or near the said aircraft, but during his cross examination, he was not able to even tell as to whether the said person whose description was given, i.e. A­2, had actually entered the aircraft or not and further whether he had come out of the aircraft or not, on the ground that many persons were entering in and coming out of the aircraft. This was despite the fact that he has specifically stated on record about the entry of PW4 in the aircraft and it has further come on record that A­2 was in his official dress at that time.

79. Further, even the presence of the IO/PW19 outside or near the said aircraft is made doubtful by the evidence led on record because though it is the claim of PW4 that when A­2 had come out of the aircraft, after meddling with the toilets of the aircraft, he (PW4) had gestured the CBI officials standing outside the aircraft about A­2 and then A­2 was taken to the arrival hall of the airport by the said officials, but, however, CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 69 of 85 the IO/PW19 in his chief examination itself has stated that A­2 was produced before him by PW4 Sh. R. Ravichandran in the arrival hall of the airport at around 7:30 AM and he was informed by PW4 that the said accused had gone to the toilet of the aircraft to look for something and no claim is being made by the IO/PW19 that he had also participated in any manner in the apprehension of A­2, on the gestures or signals being given by PW4. As also already stated above, no other official of CBI forming part of the above raiding team is a witness on record. Apart from the above, and also as already discussed above, the absence or proof of any entry having been made in the above aircraft register (D­18) in respect of PW4 is also a strong circumstance to disprove and discard his claim of having entered the said aircraft. It was also specifically admitted by PW3 and PW4 that there was no notification issued by the Customs Department exempting their officials from making an entry in the said register. During the course of this trial, Ld defence counsel has also duly brought on record one RTI application dated 26.02.2015 Ex. DW1/D moved by him and also one reply dated 04.03.2015 Ex. DW1/E given by the DGM, Security of Air India and as per point 1 of this reply, every bonafide staff of Air India is required to enter his/her name and other details in the said register before entering the aircraft and in view of these documents, the claim being made by the prosecution regarding CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 70 of 85 the exemption of the custom officials from making any entry in the said register of aircraft does not appear to be true. Moreover, it has also been discussed in the previous head that the entries at serial no. 6 to 10 of the above register in the name of few custom officials, including PW4, are already found to be there in the said register, but these entries are without any details of the timings of their entry or exit and have not been proved on record by the prosecution as per law, perhaps to manipulate the things as per their convenience.

80. Besides the above, testimony of PW5 Sh. V. K. Sachdeva is also found to be relevant on this issue of establishing the entry of PW4 Sh. R. Ravichandran in the said aircraft as PW5 is also an official of the Engineering Department of Custom Department and he claims to have entered the aircraft at the relevant time for its mechanical check up. He says that his duty was in the morning shift from 7:00 AM to 3:00 PM on that day, i.e. 31.07.1995, and A­2 M. L. Verma was also on duty in the said shift. After explaining the procedure being followed for maintenance of the aircrafts, he proves an entry of the above register of the aircraft as Ex. PW5/1 (D­18), which was made at 7:22 AM regarding his entering the said aircraft and he further states that this entry is followed by another entry in the name of A­2, though he refuses to CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 71 of 85 identify the signatures of A­2 in the said entry. However, he says that A­2 was just behind him and came inside the aircraft. During his chief examination as well as cross examination conducted by Ld defence counsel, he has also stated that he had gone to the cockpit of the aircraft and not to any other part of the aircraft and he has further stated that he remained in the cockpit for about 5 to 10 minutes. He was also questioned by Ld defence counsel regarding the presence of any custom officer in the said aircraft at the relevant time and he specifically states on record that while entering in and coming out of the said aircraft, he did not notice any custom officer present there. His these depositions also make doubtful the very entry of PW4 Sh. R. Ravichandran in the said aircraft and also his depositions regarding seeing A­2 searching the toilets of the aircraft, because if PW4 was present inside the aircraft at the relevant time of entry of A­2 in the aircraft, then his presence could have certainly been noticed and deposed about by PW5. Hence, in view of the above, even the evidence led on record by the prosecution regarding the place and manner of apprehension of A­2 is under serious clouds.

(VIII) ­ OTHER EVIDENCE AGAINST A­2 M. L. VERMA CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 72 of 85

81. As discussed above, PW5 Sh. V. K. Sachdeva is also a material witness of the prosecution story as this witness deposes about the entry of A­2 in the said aircraft, just at the same time when he himself entered the said aircraft for its mechanical check up. Though PW5 was not able to prove the signatures and handwriting of A­2 in the entry register of the aircraft, but the relevant entry of the said register regarding A­2 stands duly proved on record from the depositions made by PW7 Sh. S. V. Anand. It is the contention of Ld Sr. PP for CBI that once the entry of the accused in the said aircraft is proved by the prosecution, then it is for the accused to explain for what purpose he entered the said aircraft. However, the prosecution has not collected or produced on record any documentary evidence taken from the Custom Authorities in support of proof of the fact as to which officials were entitled or required to enter the said aircraft on that day and hence, the claim being made by A­2 that he entered the said aircraft in the course of his official duties cannot be belied or discarded for want of sufficient evidence as he was admittedly an employee of the Engineering Department of Air India.

82. Again, again though PW5 has stated on record that A­2 had CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 73 of 85 entered the aircraft alongwith him, but he has not made any depositions to the effect that the above accused had actually gone and searched the toilets of the aircraft situated on its rear end. He also states on record that since he had gone inside the cockpit, he does not know as to where A­2 had exactly gone after entering the said aircraft as he (PW5) was concentrating on his job of cockpit checks etc. During his cross examination, he has also gone on record to state specifically that either before entering the cockpit or after coming out of it, he did not notice that A­2 was proceeding towards the toilets situated in the rear side of the aircraft. Hence, from his depositions, no presumption or inference can be drawn that A­2 had gone to check the toilets of the said aircraft in search of the above concealed gold.

83. Apart from the above, PW1 Sh. Ladha Singh is another witness of the prosecution whose testimony requires to be discussed qua the role of A­2 and as per this witness, it was the same aircraft which was earlier used to fly between Delhi­Ahmadabad­Mumbai as flights no. AI­610 and AI­611 and it was now scheduled to depart from Delhi to Dubai. He has also deposed about some General Declaration Forms to be handed over by the crew members of different flights and has also referred to a photocopy of one such form dated 30.07.1995 CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 74 of 85 (D­26) in the name of A­2 for the flight no. AI­611 from Ahmadabad to Delhi, wherein the name of A­2 is mentioned as a crew member. However, the original of the above form (D­26) was never produced by the prosecution on record and hence, the above document is technically not admissible in evidence against the accused for any purpose.

84. There is also the testimony of PW7 Sh. S. V. Anand, which is required to be considered by this court against A­2 qua his role in the commission of the alleged offences. This witness has deposed on record that A­2 was working as a foreman under him at the relevant time and during his statement, he has referred to the duty rosters of Engineering Department of the relevant time and some duty rosters dated 30.07.1995 and 31.07.1995 have also been referred to by him and brought in evidence as Mark PW7/A, Mark PW7/B and Mark PW7/C. He has stated that on the basis of these documents, he can say that A­2 was on duty on both the above dates and on 31.07.1995 his duty was in the morning shift and the staff number of A­2 was 3322. As already stated, he has also proved on record the entry Ex. PW7/A (D­18) of the above register of the above aircraft, which was scheduled to fly for Dubai. However, even the originals of these documents Mark PW7/A to Mark PW7/C have not been produced by the prosecution on CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 75 of 85 record during the evidence nor they were seized during the investigation. In the absence of that, merely the photocopies of these documents which have been marked only in the evidence cannot be considered in evidence. Even otherwise, the same could have only proved that A­2 was on duty in the morning shift of 31.07.1995, which factum is not being disputed by A­2 himself. It is also on record that his duty was to start from 7:00 AM only. Further though, PW7 has stated on record that though he did not receive any complaint regarding the non­ functioning of the toilet of AI­732 on that day and he also does not remember if he enquired about the same from PW5 on that day or not and further that A­2 was not required to enter the aircraft without any specific complaint, but as already discussed above, there is no satisfactory evidence led by the prosecution on record that A­2 actually entered and searched the toilets of the aircraft or even that A­2 was not supposed to enter in the said aircraft on that day.

85. One other interesting aspect of the case is also required to be gone through. As per the case of the prosecution, A­2 was assisting the other accused in concealing the foreign currency amounts in the aircrafts and by picking of the smuggled gold from the aircrafts and this gold was subsequently collected from him by A­1, either from his CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 76 of 85 residence or at some other place. However, it is the contention of Ld defence counsel that even though A­2 was a staff member of Engineering Department of Air India and also went with certain flights as a crew member, he was always subject to frisking and screening at the time of his entry and exit at the airports and this frisking and screening was conducted by independent security agencies and hence, it was not possible for him either to take such huge currency amounts like 96,000 Dirhams with him for concealing in the aircraft or to bring out the huge quantities of gold. The accused has also brought on record in his defence one RTI application Ex.DW1/D and its reply given by Air India Ex. DW1/E and this reply clearly establishes that if any official accompanies on duty to an aircraft, then he is subjected to screening before boarding of the plain. This document clearly rules out any possibility of taking of such cash amounts by the above accused with him and the bringing of the gold or gold biscuits etc outside the airport.

86. Apart from the above, certain original embarkation/ disembarkation cards of A­1 (since PO) were also seized by the IO/PW19 during the investigation of the case vide one seizure memo Ex.PW16/A (D­14) from PW16 Sh. Jagdish Singh of FRRO and these cards are Ex. C1 to Ex. C9 on record and it include an embarkation card CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 77 of 85 of the above flight no. AI­732. The same are being referred to with reference to the charge of criminal conspiracy framed against the accused persons and it is argued on behalf of the prosecution that these cards show that A­1 was a frequent traveler to different countries and the same was only in furtherance of the criminal conspiracy in existence between the accused persons and to take the foreign currency out of India and to bring illegal gold in India from these foreign countries. Here also, the mere seizure of these cards and their production on record is not sufficient as there is no evidence on record that these cards were actually filled in by A­1 or actually belonged to him as no specimen handwriting or signatures of the above accused were ever taken during the investigation or got compared with the handwriting and signatures appearing in these cards. Moreover, from these cards and the alleged frequent visits of A­1, no presumption or inference can be drawn that the same were for any illegal purpose or for the alleged purpose of smuggling of gold.

(IX) ­ EVIDENCE AGAINST A­3 TO A­5

87. As far as the other accused, i.e. A­3 to A­5, are concerned, their names did not figure in the statements U/s 108 of the Customs Act Ex. PW6/1 (D­16) and Ex. PW3/3 (D­15) of A­1 and A­2 respectively CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 78 of 85 and the same had only figured for the first time in the disclosure statement of A­1 Ex. PW2/1 (D­23) on record. Though the IO/PW19 during his cross examination was also questioned in this regard and though he had initially claimed that the names of the above three accused were disclosed in the statements U/s 108 of the Customs Act by the above two accused, but he was duly confronted by Ld defence counsel on this aspect and after seeing the judicial record he has to admit that the same were not there in the said statements.

88. Apart from the above disclosure statement Ex. PW2/1 (D­23) made by A­1, there are disclosure statements made by A­3 & A­5 on record and the same are Ex. PW2/2 (D­24) and PW13/A (D­28). Under the relevant head no. (V) pertaining to these disclosure statements, detailed discussion has already been made regarding the legal value of these disclosure statements and merely because certain names were disclosed in these statements, the same cannot be considered to be incriminating against any of these accused and cannot be illegally used against them, as it is an admitted fact that neither any recovery of gold or of any foreign currency amount was made from the possession or at the instance of any of these three accused. Even considerable gaps have been found to be there in between recording of CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 79 of 85 these statements and the contents of these statements have also been found to be having certain inter­se contradictions. Besides these disclosure statements, there is also one testimony of PW10 Sh. Badre Alam, which has also already been discarded by this court as unreliable and also on certain technical grounds and even the pointing out memo Ex. PW13/B (D­28) of the above Azeem Hotel prepared at the instance of A­5 has been held to be not an incriminating evidence in the previous discussion.

89. Apart from the above, the testimonies of PW14 Sh. Sanjiv Kumar and PW15 Sh. Tarunveer Singh Mayal are also required to be appreciated qua the role of A­4 Ramji Sandhu as it was being alleged that apart from contributing some cash amounts for illegal smuggling of gold, he was also providing free air tickets to A­1 Ashok Kohli. PW14 is a nephew (bhanja) of A­4 and was working with M/s Murti Tour & Travels owned by A­4 and he has also stated that one Rachhpal Singh, who was brother in law (jija) of A­4, was also working with him. During his cross examination, some registers D­19 and D­20 were shown to him by Ld Sr. PP for CBI and the same allegedly contain entries dated 29.07.1995 and 04.08.1994 in respect of the tickets issued in the name of A­1 through the said company and these entries are Mark PW14/A CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 80 of 85 (D­19) and Mark PW14/B (D­20) on record. However, these entries also do not stand proved on record from the depositions made by this witness as he has stated that the same were not in his handwriting and he also does not identify the writing of the makers of the said entries. He was even cross examined at length by Ld Sr. PP for CBI, but nothing material could be extracted out during his such cross examination on these aspects.

90. PW15 Sh. Tarunveer Singh Mayal of M/s New Airways Travels is another witness examined by the prosecution on record regarding the issuance of tickets of A­1 and during his examination, a photocopy of some register of the above company containing entries for the period from 24.07.1995 to 01.08.1995 (D­6) is also brought on record, but it is also not admissible in evidence for want of the production of original thereof. One invoice of the ticket dated 29.07.1995 (D­22) of A­2 purchased through their company is also brought on record as Ex. PW15/X in his statement, but even the same is also not admissible in evidence for the above said reasons and further being hit by the provisions of Section 65B of the Indian Evidence Act. Moreover, simply from these records also no presumptions could have been drawn that A­1 had got issued the said tickets or had performed CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 81 of 85 the journeys on these tickets for any illegal purposes or further that A­4 Ramji Sandhu was also part of any criminal conspiracy to such journeys undertaken by A­1 for some illegal purpose of smuggling of gold.

91. Though, Ld Sr. PP for CBI is right in submitting that a direct evidence of criminal conspiracy will never be there as such conspiracies are always hatched in privacy and behind closed doors, but some strong circumstances and admissible evidence should certainly be there on record, before a court can draw any such legal inference regarding the existence of any criminal conspiracy between the accused persons, which is made punishable by Section 120B IPC or which may come even within the purview of Section 135 of the Customs Act. In the absence of any such legal and admissible evidence showing the existence of the alleged criminal conspiracy between the accused persons on record, this court is constrained to say that the prosecution has failed to prove the existence of such a conspiracy.

(X)- DEFECTS IN SANCTION

92. Ld defence counsel has also pointed out a material discrepancy and lacunae in the sanction Ex. PW9/A (D­30) granted by PW9 Sh. Virender Singh U/s 137 of the Customs Act for prosecution of CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 82 of 85 all the accused persons for the offence punishable U/s 135 of the said Act. It is his contention that no sanction of any authority can be termed to be legal if the same is obtained by concealment of some material facts and circumstances from the said authority. He has also pointed out that the above sanction Ex. PW9/A nowhere states that it was granted to any CBI officer for prosecution of the accused persons and the same even nowhere suggests that PW9 was even made aware that the investigation of the case was being conducted by the CBI. As per him, the factum of conduction of investigation by the CBI was concealed from PW9 only because he would not have granted the sanction otherwise as the CBI officials were not competent to undertake any investigation under the said Act. I also find force in the above submission of Ld defence counsel because though the sanction is dated 10.10.1997 and was given more than two years after the commission of the alleged offences, but it nowhere suggests that the above factum of taking over of investigation of the case by the CBI was ever brought to the notice of PW9, who was the authority competent to grant the said sanction. Hence, this sanction obtained against the accused persons can also be termed as vitiated and it has certainly caused prejudice to the accused persons in subjecting them to the present trial, which they might not have been subjected otherwise.

CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 83 of 85

93. In view of the above discussion, it is held that the prosecution has miserably failed to prove that A­3 to A­5 were part of such criminal conspiracy to commit any offences under the Customs Act and the evidence led on record qua the role of A­2 in the alleged conspiracy is also full of material contradictions, lacunaes and various other discrepancies and the prosecution has also failed to prove that A­2 had acted in any corrupt manner or had abused his position as a public servant or had obtained any valuable thing or pecuniary advantage for himself or for any other person. Hence, A­2 is being acquitted of all the charges framed against him giving benefit of doubt to him and the remaining three accused i.e A­3 to A­5 are also acquitted of the said charges for want of sufficient incriminating evidence against them to establish the said charges.

94. The bonds U/s 437A Cr.P.C., alongwith the latest photographs of the above four accused and their sureties and also the proofs of their residential addresses, have already been furnished on record and hence their regular bonds furnished during the trial are being discharged. Case property is directed to be confiscated and disposed of as per law.

CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 84 of 85

95. File be consigned to record room, to be preserved for the purposes of Section 299 Cr.P.C as A­1 Ashok Kohli is a Proclaimed Offender.

Announced in the open Court on 31 August, 2015 st (M. K. Nagpal) Special Judge (PC Act), CBI­08, Central District, Delhi/31.08.2015 CC No. 143/2015 CBI Vs. Ashok Kohli & Ors. Page No. 85 of 85