Delhi District Court
Cbi vs . Mohd. Tahir S/O Sh. Abdul Karim, on 7 August, 2014
1
IN THE COURT OF SH. BRIJESH KUMAR GARG:
SPECIAL JUDGE: CBI01, CENTRAL DISTRICT. DELHI
SC No. 1/2012 RC : 220/12/E0016
PS : CBI/EOUVI/ND
U/s : 120B IPC & Sec.
489B & 489C IPC
CBI Vs. Mohd. Tahir S/o Sh. Abdul Karim,
R/o House No. 22/10, S.T. Mohalla,
22, AlamaIqbal Road,
Lahore (Pakistan). ( in J/C )
Date of Institution : 28.09.2012
Judgment Reserved on : 26.07.2014
Judgment Delivered on : 07.08.2014
J U D G M E N T
1. In the present case, the accused is facing trial for the offences punishable u/s 120B r/w Sec. 489B & 489C IPC, as well as for the offences punishable u/s 489B and 489C IPC.
Facts of the Case
2. It has been stated in the charge sheet that on the written complaint of Sh. Rajesh Dabral, Appraiser, Directorate of Revenue CBI Vs. Mohd. Tahir pg 1 of 34 Special Judge, CBI01, Central, Delhi 2 Intelligence, New Delhi, dated 23.06.2012, case FIR No. RC 220/2012/E0016/EOUVI/EOII, was registered at CBI, New Delhi, on 26.06.2012, wherein, it was alleged that the accused had come from Lahore, Pakistan and had concealed the Fake Indian Currency Notes (FICN) in the ladies slippers, given to him by one Mamoo, at Delhi Darwaza Bazar, Lahore, Pakistan and he carried the Fake Indian Currency Notes (FICN), from Pakistan to India for monetary consideration of Rs.14,500/.
3. It is further stated in the chargesheet that following the interception of the accused at Kabootar Bazar, New Delhi, a notice u/s. 102 of the Customs Act, 1962, was served upon him by the DRI and he was taken to their office at Paryavaran Bhawan, Lodhi Road, New Delhi, along with his baggage. It is further stated that during the search of the baggage of the accused and search of his black colour zipper bag, a total of 19 pairs of golden colour ladies slippers were found and on minute inspection and examination, the DRI team recovered the bundles of Fake Indian Currency Notes (FICN), fitted in CBI Vs. Mohd. Tahir pg 2 of 34 Special Judge, CBI01, Central, Delhi 3 a specially made cavity, almost of the size of the currency note bundles, made in the sole of the slippers. The said bundles were found to be kept in the cavity, covered with blue carbon paper and the bundles were made by folding the currency notes, fitting in the size of the cavity and fixed with transparent adhesive tape. On opening of the said bundles, a bundle was found to contain 10 numbers of Fake Indian Currency Notes (FICN) of Rs.1,000/ each and on examination of all the slippers and recovered bundles, the same were found containing 208 Fake Indian Currency Notes (FICN) of Rs.500/ denomination and 189 Fake Indian Currency Notes (FICN) of Rs. 1000/ denomination, having total face value of Rs.2,93,000/.
4. It is further stated in the charge sheet that all the Indian currency notes, appeared prima facie to be fake and the accused also informed the DRI officers that the recovered Indian Currency notes were fake. The Bank Manager of State Bank of India, CGO Complex Branch, New Delhi, was requested vide letter dated 22.06.2012, for deputing an officer to examine the recovered currency notes and to CBI Vs. Mohd. Tahir pg 3 of 34 Special Judge, CBI01, Central, Delhi 4 verify and certify about its genuineness and after examination of the currency notes, the bank official gave his opinion, in writing, that the currency notes appeared to be Fake Indian Currency Notes (FICN). Thereafter, the Fake Indian Currency Notes (FICN) along with the bag and its contents were seized.
5. It is further stated in the charge sheet that the accused was examined u/s. 108 of the Customs Act, 1962, wherein, he stated that on 16.06.2012, he had gone to Delhi Darwaza Bazar, Lahore, Pakistan, to purchase some goods, prior to his visit to India and a person known in the market as 'Mamoo', handed over to him a bag containing Fake Indian Currency Notes (FICN), concealed in 19 pairs of ladies slippers with bedsheets and clothings and asked him to hand it over to one 'Rashid' at Kabootar Bazar, Delhi (India). He further stated that he carried the Fake Indian Currency Notes (FICN) from Pakistan to India for monetary consideration of Rs.14,500/.
6. It is further stated in the chargesheet that in his voluntary CBI Vs. Mohd. Tahir pg 4 of 34 Special Judge, CBI01, Central, Delhi 5 statement u/s. 108 of The Customs Act, 1962, recorded by the DRI officials, the accused had admitted his involvement in the trafficking and circulation in Fake Indian Currency Notes (FICN) and its smuggling from Pakistan etc.
7. It is further stated in the chargesheet that during investigations, the recovered currency notes were sent for examination to the Bank Note Press, Nashik Road, Maharashtra and the expert had opined that the same were "counterfeit notes".
8. During investigations, the independent witnesses were examined and their statements were recorded and the accused was arrested and sent to judicial custody and after completion of investigations, the charge sheet was filed in the court and the accused was sent up for trial.
9. Vide order dated 07.12.2012, the charges for the offences punishable u/s. 120B r/w sec. 489B & 489C and the offences u/s. CBI Vs. Mohd. Tahir pg 5 of 34 Special Judge, CBI01, Central, Delhi 6 489B /489C IPC, were framed against the accused, by the Ld. Predecessor of this court, to which, he pleaded not guilty and claimed trial.
Evidence led by prosecution
10. During the course of trial, the prosecution has examined a total of 16 witnesses, as under:
(i) PW1 Sh. Pawan Singh, who has produced the call details, along with the application form and identity documents of the subscribers of the mobile phone No. 9891639607 and 8872919598, registered in the name of Saurabh Kumar and Satnam Singh, respectively.
(ii) PW2 Sh. Saurabh Kumar, the registered user of mobile phone No. 9891639607 who has deposed that the said telephone number was never used by him.
(iii) PW3 Sh. Rajesh Dabral, the Appraiser, DRI DZU, Lodhi Road, New Delhi, who is the complainant of the present case.
(iv) PW4 Sh. Vivek Chaudhary, Sub Inspector, CBI, EOUVI, CBI Vs. Mohd. Tahir pg 6 of 34 Special Judge, CBI01, Central, Delhi 7 New Delhi, who assisted the I.O., PW16 Ms. Risinamol K.C., during investigations and collected various documents from the Nodal Officers of mobile phone companies and prepared the chargesheet.
(v) PW5 Ms. Anju Singh, is the Intelligence Officer, DRI, DZU, Lodhi Road, New Delhi, who was allegedly the member of the raiding team, which apprehended the accused.
(vi) PW6 Sh. Sanjay Kumar, is the Intelligence Officer, DRI, DZU, Lodhi Road, New Delhi, who was also the member of the raiding team, which apprehended the accused.
(vii) PW7 Sh. J.K.Chaudhary, who was working at CNP, Nasik Road, Nasik and examined the FICN in the present case and gave his report Ex.PW3/Z9.
(viii) PW8 Sh. Mohd. Parwez, a public witness, who allegedly witnessed the arrest of the accused and recovery of FICN from his possession, at the shop of his brother Sarfaraz, at Kabootar Market, Jama Masjid, Delhi.
(ix) PW9 Sh. Prem Singh, an independent public witness, who allegedly accompanied the raiding team during the raid.
CBI Vs. Mohd. Tahir pg 7 of 34 Special Judge, CBI01, Central, Delhi 8
(x) PW10 Sh. Mohd. Farooq, is the relative of accused Mohd. Tahir, who received information regarding the arrest of the accused, in the present case.
(xi) PW11 Sh. Mohd. Sarfaraz, is a public witness, who allegedly witnessed the arrest of the accused and recovery of FICN from his possession, at his shop, in the name and style of Feroze Cosmetics, at Kabootar Market, Jama Masjid, Delhi.
(xii) PW12 Sh. Jasbir Singh, Immigration Officer, posted at Bureau of Immigration Office, Amritsar, Punjab, who provided various documents regarding the identity and immigration of the accused to India.
(xiii) PW13 Sh. Isaac Lanah, who was working as Customer Relation Associate at SBI, Paryavaran Bhawan, CGO Complex, Lodhi Road, New Delhi and examined the FICN, on 22.06.2012 and proved his report Ex.PW.3/V.
(xiv) PW14 Sh. Ramesh Kumar, Sr. Intelligence Officer, DRI, DZU, who was also the member of the raiding team, which apprehended the accused.
CBI Vs. Mohd. Tahir pg 8 of 34 Special Judge, CBI01, Central, Delhi 9
(xv) Sh. Devendra Singh, who was working as an Intelligence Officer, DRI, DZU, New Delhi, and was also the member of the raiding team, which apprehended the accused.
(xvi) Ms. Risinamol KC, Sub Inspector, CBI/EOUVI, New Delhi, who is the Investigating Officer of the present case.
11. After completion of the prosecution evidence, the statement of accused was recorded u/s. 313 Cr.P.C., on 22.03.2014, wherein, he denied all the incriminating evidence against him and has stated that he has been falsely implicated in this case. He has further stated that no Fake Indian Currency Notes (FICN) were brought to India by him and when he entered India, his goods were checked at the boarder, but no incriminating articles were detected. He has further stated that he had brought the ladies slippers but the same were not carrying any Fake Indian Currency Notes (FICN) and the same had been planted on him. The accused had preferred to lead evidence in defence, but, he has failed to examine any witness, despite ample opportunities. CBI Vs. Mohd. Tahir pg 9 of 34 Special Judge, CBI01, Central, Delhi 10
12. After completion of the trial, final arguments were addressed by Shri Praneet Sharma, Ld. PP for the CBI and Shri Girish Kumar, Advocate, Ld. Counsel for the accused.
Arguments on behalf of the CBI
13. It has been argued by the Ld. PP for the CBI that the prosecution witnesses have proved the recovery of fake Indian currency notes, from the possession of the accused and have also proved on record that the accused, who is a Pakistani citizen/ National, was involved in trafficking of FICN from Pakistan to India. However, during the course of arguments, Ld. PP for the CBI has conceded that no evidence has come on record to prove the charges for the offence punishable u/s. 120B IPC, r/w 489B & 489/C IPC.
14. It has been further argued by the Ld. PP for the CBI that PW8 Sh. Mohd. Parwez and PW9 Sh.Prem Singh, are the public witnesses, who have corroborated the testimony of PW5 Ms. Anju Singh, PW6 Sanjay Kumar, Intelligence Officers, PW14 Sh. Ramesh CBI Vs. Mohd. Tahir pg 10 of 34 Special Judge, CBI01, Central, Delhi 11 Kumar, Senior Intelligence Officer & PW15 Sh. Devendra Singh, Intelligence Officer, and have proved the recovery of FICN, from the possession of the accused. It is also argued that PW7 Sh. J.K.Chaudhary, an expert from Bank Notes Press, Nasik, has proved that the alleged currency notes, which were recovered from the possession of accused, were the fake Indian currency notes. His report has been proved on record as Ex.PW.3/Z9. The Ld. PP for the CBI has also argued that initially the FICN were also examined by PW13 Sh. Isaac Lanah, just after the recovery of FICN, from the possession of accused and vide report Ex.PW.3/V, PW13 Sh. Isaac Lanah has also proved that the currency notes, recovered from the possession of the accused were Fake Indian Currency Notes. The Ld. PP for the CBI has prayed that the accused be held guilty and convicted for the offences punishable u/s 489B and 489C IPC. Arguments on behalf of the accused
15. On the other hand, Sh. Girish Kumar, Advocate, Ld. counsel for the accused has argued that there are a large number of material CBI Vs. Mohd. Tahir pg 11 of 34 Special Judge, CBI01, Central, Delhi 12 contradictions in the depositions of the witnesses and there are a large number of material discrepancies in the documents on record, which makes the entire prosecution case doubtful. He has argued that PW8 Mohd. Parwez and PW9 Prem Singh, are not the independent witnesses, as PW8 Mohd. Parwez was allegedly the brother of PW11 Sh. Mohd. Sarfaraz, who was allegedly running a shop at Kabootar Market, Delhi, in the name and style of M/s, Feroz Cosmetic and from the testimony of various prosecution witnesses, it is clear that this witness was not present at the spot, at the time of alleged raid and this witness has been planted lateron. He has further argued that PW9 Sh. Prem Singh was the brother of Shri Ramesh, who was working as Munshi (court clerk) to Sh. Satish Aggarwal, Advocate, who is a senior counsel, representing the DRI and was having his Chamber at Patiala House Courts.
16. The Ld. defence counsel has also argued that there are various contradictions regarding the recovery of FICN from the possession of the accused, at the shop of PW11 Mohd. Sarfaraz at CBI Vs. Mohd. Tahir pg 12 of 34 Special Judge, CBI01, Central, Delhi 13 Kabootar Market, Delhi, as some of the witnesses have deposed that FICN were recovered at the shop of PW11 Mohd. Sarfaraz, whereas, the other witnesses have deposed that after his interception, the accused was taken to the CBI office, where his baggage was checked and FCIN were recovered.
17. It has been further argued by the Ld. defence counsel that a specific information was received by the officials of the DRI, that a Pakistani National is coming from Samjhota Express, carrying FICN, to be delivered at Kabootar Market, Delhi. But, when the accused was allegedly intercepted, a large number of other incriminating articles were also recovered form his possession and a case under the Customs Act, was also registered against him. He has further argued that the secret information was never passed to the concerned officials of the CBI and the FIR in the present case, was registered only on 26.06.2012, after a delay of about five days. He has also argued that none of the prosecution witnesses has disclosed any reason regarding this delay of about five days in registration of CBI Vs. Mohd. Tahir pg 13 of 34 Special Judge, CBI01, Central, Delhi 14 the FIR and the same is fatal to the prosecution case.
18. The Ld. defence counsel has also argued that the DRI officials, who got the secret information regarding the trafficking of FICN by the accused, were not competent to inquire or investigate the said complaint and the officials of the DRI should have passed on the information to the local police officials or the CBI. He has also argued that a large number of material contradictions in the deposition of the witnesses and the material discrepancies in the various documents makes the entires prosecution case doubtful and therefore, the accused be acquitted for the offences punishable u/s. 120B, sec. 489B & 489C of the IPC.
19. I have carefully perused the case file and I have also given my considered thoughts to the arguments addressed by the Ld. PP for the CBI and the Ld. defence counsel.
Findings
20. During the course of final arguments, the Ld. PP for the CBI CBI Vs. Mohd. Tahir pg 14 of 34 Special Judge, CBI01, Central, Delhi 15 has conceded that no evidence has come on record for against the accused, to prove the offence u/s. 120B IPC. He has admitted that during investigations, it was revealed that the accused was asked by one Maamu at Delhi Darwaza Bazar, Lahore , Pakistan to carry the FICN from Pakistan to India, for monetary consideration of Rs.14500/ and accused was also directed to hand over the same to one Rashid at Kabootar Market, Delhi. But, no evidence has come on record during the trial, in this regard.
21. Perusal of the record shows that PW15 Devendra Singh, the intelligence Officer of DIR, DZU, New Delhi, who conducted the initial investigations in the case, had categorically stated that on 22.06.12, there was a specific information that a Pakistani national, aged about 3540 years, was coming from Samjhauta Express, carrying FICN, to be delivered at Kabootar Market, Opp. Masjid, Delhi. This witness has further stated that the accused was spotted at Old Delhi Railway Station and was followed till shop No. 41, Dargah Sheikh Kalimullah, Opp. Masjid, Kabootar Market, Opp. Red Fort, Delhi, where the CBI Vs. Mohd. Tahir pg 15 of 34 Special Judge, CBI01, Central, Delhi 16 accused waited to deliver the FICN, but the person who had to take the delivery of FICN, did not turn up. During the investigations, the IO had collected the call details of mobile phone No. 9891639607 and 8872919598, which were being used by Rashid, the person who was supposed to take the delivery of FICN. PW1 Pawan Singh has produced the call details of these two mobile phone numbers and it has come on record that the phone No. 8872919598 was issued in the name of one Satnam Singh, whereas, the mobile phone No. 9891639607 was issued in the name of one Saurabh Kumar.
22. During the trial, Sh. Saurabh Kumar has been examined as PW2 and this witness has categorically deposed before the court that mobile phone No. 9891639607 was never used by him. This witness has further deposed that the customer application form Ex.PW1/D and the ID proof Ex.PW1/E were not bearing his signatures. The other registered user of mobile phone No. 8872919598, namely, Sh. Satnam Singh has not been produced before the court and was not examined, during the trial. There is no further evidence on record CBI Vs. Mohd. Tahir pg 16 of 34 Special Judge, CBI01, Central, Delhi 17 against the accused to prove the charge for the offence punishable u/s. 120B IPC.
23. As the Ld. PP for the CBI has argued that the public witnesses and the official witnesses have duly proved the recovery of FICN from the possession of the accused, and therefore, the accused should be held guilty and convicted for the offences punishable u/s.489B & 489C IPC, let us first examine the legal position in respect to the aforesaid two offences.
24. In the case titled as "Umashanker vs. State of Chhattisgarh", reported as "2001 Crl.L.J. 4696", the Hon'ble Supreme Court has held as under :
8. A perusal of the provisions, extracted above, shows that mens rea of offences under Section 489B and 489C is, "knowing or having reason to believe the currencynotes or banknotes are forged or counterfeit". Without the aforementioned mens rea selling, buying or receiving from another person or otherwise trafficking in or using as genuine forged or counterfeit currencynotes or banknotes is not enough to constitute offence under Section 489B of I.P.C. So also possessing or even intending to use any forged or counterfeit currencynotes or bank CBI Vs. Mohd. Tahir pg 17 of 34 Special Judge, CBI01, Central, Delhi 18 notes is not sufficient to make out a case under Section 489C in the absence of the mens rea, noted above. No material is brought on record by the prosecution to show that the appellant had the requisite mens rea. The High Court, however, completely missed this aspect. The learned trial Judge on the basis of the evidence of PW 2, PW 4 and PW 7 that they were able to make out that currency note alleged to have been given to PW 4, was fake "presumed" such a mens rea. On the date of the incident the appellant was said to be 18 years old student. On the facts of this case the presumption drawn by the trial Court is not warranted under Section 4 of the Evidence Act. Further it is also not shown that any specific question with regard to the currencynotes being fake or counterfeit was put to the appellant in his examination under Section 313 of Criminal Procedure Code. On these facts we have no option but to hold that the charges framed under Sections 489B and 489C are not proved. We, therefore, set aside the conviction and sentence passed on the appellant under Sections 489B and 489C of I.P.C. and acquit him of the said charges. (See : M.Mammutti v. State of Karnataka ; AIR 1979 SC 1705).
(emphasis supplied by me)
25. In the case titled as "Bachan Singh and another vs. The State of Punjab", reported as "1982 Cri.L.J. 32", the Hon'ble High Court of Punjab & Haryana has held as under :
10. In order to sustain the convictions of Joginder Kaur appellant, the prosecution has not only to prove that she had the possession of counterfeit note, Exhibit P.1, ensuring it or having reason to believe it as such, but further to prove circumstances which lead clearly, CBI Vs. Mohd. Tahir pg 18 of 34 Special Judge, CBI01, Central, Delhi 19 indubitably and irresistibly to her intention to use the notes on the public as has been held in Bur Singh v. The Crown, (1930) ILR 11 Lah 555 ; (1931) 32 Cr LJ 351). It has further been held' that such intention could be proved by a collateral circumstance that she had palmed off such notes before, or that she was in possession of such notes in, such large numbers, that her possession for any other purpose was inexplicable. The facts as found are that she had on her person only one madeup note, that she was an illiterate lady and that anybody as Sh. Darshan Kumar Ahluwalia, PO.W.2, would have us believe could be misled to treat it as a genuine note. She gave the note to Kundan Lal, P.W.2 and he told her that it was not a genuine note and his belief was confirmed when he showed it to others as well. It has nowhere been asserted that the note was ever returned to her and having known fully well or having reason to believe the same to be forged for counterfeit she yet made another attempt to palm it off. Thus tendering alone such note to Kundan Lal, P.W., unless the prosecution could prove that it was with dishonest intention so as to cause wrongful loss to him and wrongful gain to herself would not make her act to fall squarely within Section 420/511, Indian Penal Code, or to have come within the mischief of Section 489B or 489C, Indian Penal Code. The inference sought to be drawn that she must have known or reason to believe the note, Exhibit P 1, to be counterfeit because her husband accompanying her was found to be in possession of similar notes is entirely misplaced for no common intention has been attributed to them and they have not been charged with the aid of section 34, Indian Penal Code. For the individual act of Joginder Kaur she cannot be convicted for the above named offences and must be extended the benefit of doubt.
(emphasis supplied by me) CBI Vs. Mohd. Tahir pg 19 of 34 Special Judge, CBI01, Central, Delhi 20
26. In the case titled as "Panna Lal Gupta vs. State of Sikkim, ", reported as "2010 Cri.L.J. 825", the Hon'ble High Court of Sikkim has held as under :
10. An ordinary reading of both the above quoted sections would go to show that to constitute an offence under Section 489B, following essential ingredients are necessary :
(1)The note in question is a currency note or a bank note; (2) It was forged or counterfeited ;
(3)The accused sold to, or bought from, or received it from any person ; (4) That the accused knew or had reason to believe it to be forged or counterfeited.
Similarly, the ingredients which are required to constitute an offence under Section 489C are as follows :
(1) The note in question is a currency note or bank note; (2) Such note was forged or counterfeited.
(3) The accused was in possession of the currency note or bank note ; (4) The accused intended to use the same as genuine ; (5) The accused knew or had reason to believe the note to be forged.
11. Basically it is stipulated in above provisions of law that the accused who is in possession of the alleged forged or counterfeit currency notes knew or had reason to believe that those currency notes to be forged. The offences under those Sections can only made out when the accused knows that the counterfeit notes he possessed are forged or counterfeited and those are intentionally used as genuine.
12. A conjoint reading of both the above provisions of law would go to show that mere possession of the currency note will not be sufficient to constitute the offence described under those Sections. Both CBI Vs. Mohd. Tahir pg 20 of 34 Special Judge, CBI01, Central, Delhi 21 the Sections clearly indicate that a person who possesses such forged or counterfeit currency note or bank note must have the knowledge or have the reason to believe that the said currency note or bank note are forged or counterfeit in order to fasten criminal liability against him. In other words, the accused must possess and sell or buy or receive or use as genuine, any forged or counterfeit currency note or bank note, "knowing or having reason to believe the same to be forged or counterfeit".
(emphasis supplied by me)
27. Perusal of the record shows that there are large number of material contradictions, in the deposition of the alleged independent public witnesses and the deposition of the other members of the raiding team of the DRI, regarding the recovery of the FICN from the possession of the accused. Even the place of recovery of the FICN, from the possession of the accused, is not certain. Nothing has come on record that the accused was having the knowledge that the ladies slippers were containing FICN, concealed in a cavity specially made for this purpose in the sole of the ladies slippers. Nothing has come on record that he intended to use the said FICN. Furthermore, there is also an unexplained delay of about five days in registration of the FIR. Even, the entire link evidence regarding seizure of FICN, its CBI Vs. Mohd. Tahir pg 21 of 34 Special Judge, CBI01, Central, Delhi 22 deposition at Malkhana and thereafter deposition of FICN at Bank Notes Press Nasik, Maharashtra, is also missing.
Delay in registration of FIR
28. It has been deposed by PW5, Ms. Anju Singh, Intelligence Officer, PW6 Sanjay Kumar, Intelligence Officer, PW14 Ramesh Kumar, Sr. Intelligence Officer and PW15 Devendra Singh, Intelligence Officer, that on 22.06.12, there was a specific information that a Pakistani National, aged about 3540 years, is coming from Samjhauta Express, carrying FICN, to be delivered at Kabootar Market, Opp. Masjid, Delhi, and thereafter, a team was constituted and the accused was trapped at shop No. 41, Kabootar market, Opp. Red Fort, Delhi. The complainant PW3 Sh. Rajesh Dabral, has further deposed that he lodged the complaint dated 23.06.2012, on behalf of DRI, DZU, to the Asstt. Commissioner of Police, EOUVI, regarding seizure of 397 FICN, in the denomination of Rs.1000/ and Rs.500/, of total face value of Rs.2,93,000/. PW3 Rajesh Dabral has proved his complaint as Ex.PW3/A. CBI Vs. Mohd. Tahir pg 22 of 34 Special Judge, CBI01, Central, Delhi 23
29. PW16 Ms. Risinamol K.C. Sub Inspector who investigated the present case, has deposed that the investigation of this case was entrusted to her by Addl. SP Sh. Ajayab Singh, on 27.6.12 and a case was registered in the branch on 26.6.12 as RC 16/2012 u/s. 120B r/w 489B & 489C IPC. The copy of the FIR has been placed on record as Ex.PW16/A. But, during the trail, the FIR could not be proved, in accordance with law, as neither the duty officer who recorded this FIR on the complaint of PW3 Rajesh Dabral, nor Addl. S.P. CBI EOUIV Sh. Ajayab Singh, who ordered the registration of FIR, has been produced or examined before the court, during the trial.
30. Perusal of the record further shows that the complaint Ex.PW3/A, dated 23.06.2012, was received in the office of ACP, EOUVI, CBI, at CGO Complex, Lodhi Road, New Delhi, through registered speed post and it is an admitted fact that the office of the DRI and the office of the ACP, EOUVI, CBI are situated in the same building. It is surprising to note, as to why, the complainant PW3 CBI Vs. Mohd. Tahir pg 23 of 34 Special Judge, CBI01, Central, Delhi 24 Rajesh Dabral, chose to lodge the FIR by sending his complaint dated 23.6.12, by speed post. He should have sent the complaint, by hand to get the FIR registered, on 23.06.2012, itself, as the office of CBI was situated in the same building. There is no explanation regarding the delay of about 5 days, in registration of the FIR. The accused was apprehended on 22.6.2012 at about 2.30 p.m. But, the FIR has been registered, only on 26.6.2012 at 5.00 p.m. Even the other Intelligence Officers of the DRI as well as the IO of the present case, have failed to give any reasonable explanation for this delay.
31. It is pertinent to mention here that after the arrest, recovery of FICN and the other articles from the possession of the accused on 22.6.2012, the proceedings under the Customs Act, 1962, were conducted by the DRI Officials and proceedings under the Provisions of the Customs Act, 1962, bearing DRI.F.No. 34/03/2012DZU, had already been registered on 23.06.2012 itself and the same was investigated and a separate charge sheet had been filed in the court of Sh. Gautam Manan, Ld. ACMM, Patiala House Courts, New Delhi. CBI Vs. Mohd. Tahir pg 24 of 34 Special Judge, CBI01, Central, Delhi 25 Contradictions in the depositions of independent public witnesses and the DRI Officials
32. PW5 Anju Singh and PW15 Devendra Singh, Intelligence Officer, have deposed that after receiving of the specific information about the accused, a team was constituted, consisting of Sh. Ramesh Kumar, Sr. Intelligence Officer (PW14), Sh. Sanjay Kumar, Intelligence Officer (PW6) and themselves. But, PW6 Sanjay Kumar and PW14 Ramesh Kumar have deposed that Intelligence Officer Sh. Manish Pintu was also a member of the team. But, Intelligence Officer Sh. Manish Pintu has not been examined, during the trial and he is not even mentioned as a witness, in the list of witnesses attached with the charge sheet.
33. Furthermore, it has been stated by all the members of the DRI team that the accused was spotted at Old Delhi Railway Station and the team followed him till he reached shop No. 41, Dargah Sheikh Kalimullah, Opp. Masjid, Kabootar Market, Opp. Red Fort, Delhi, CBI Vs. Mohd. Tahir pg 25 of 34 Special Judge, CBI01, Central, Delhi 26 where the DIR officials arranged two independent witnesses, namely, PW8 Mohd. Parvez and PW9 Prem Singh. Thereafter, the accused was intercepted, when he was about to move from shop No. 41, along with his baggage. All the members of the raiding team have categorically stated that the accused was served with a notice u/s. 102 of the Customs Act, 1962 and he was explained the language of the notice in Hindi. It is further stated by all these witnesses that considering the sensitivity of the situation and the location of the spot, as several people have gathered there and there was a likelihood of law and order problem, all the members of the DRI team along with panch witnesses, took the accused Mohd. Tahir along with his baggage, to their office, where the baggage of accused Mohd. Tahir was examined, in the presence of the panch witnesses.
34. On the other hand PW8 Mohd. Parvez , one of the alleged independent public witness, has deposed that on 12.6.2012, at about 11.30 p.m., he was present at the shop of his brother, at Kabootar market Jama Masjid, in the name and style of Feroze Cosmetics, and CBI Vs. Mohd. Tahir pg 26 of 34 Special Judge, CBI01, Central, Delhi 27 was preparing for Namaz when the accused came there and asked his help to make a phone call. He has further stated that accused made two phone calls, within an interval of 23 minutes, from the mobile phone of his brother Sarfaraz, but nobody turned up and after about 510 minutes, the officers of DRI came there and apprehended him. This witness has categorically stated that the DRI officials carried out the search of the accused and also of the baggage carried by him, after serving a notice to him and during search proceedings they recovered 38 pieces of ladies slippers of golden colour. The sole of ladies slippers were removed by the DRI officials and found that currency notes were concealed in the sole by, making grooves in the sole. The recovered notes were of denomination of Rs.500 and Rs. 1000 and thereafter, the DRI officials took him and the accused to their office at Lodhi Road. This witness has further deposed that another person namely, Prem Singh was also associated by the DRI officials, during these proceedings.
35. The second independent public witness,namely PW9 Prem CBI Vs. Mohd. Tahir pg 27 of 34 Special Judge, CBI01, Central, Delhi 28 Singh has deposed that he was residing with his brother Sh. Ganesh, who was working as a Munshi (Court Clerk), with an Advocate at Patiala House Courts. During his crossexamination, he had admitted that he used to reside at Chamber No. 226227, Patiala House Courts, New Delhi and the said Chamber belongs to Shri Satish Aggarwal, Advocate. It is an admitted fact that Shri Satish Aggarwal, is a panel Advocate / consultant of DRI, New Delhi. PW9 Shri Prem Singh has further deposed that on 22.06.2012, he accompanied the DRI officers to a shop at Kabootar Market, Opposite Red Fort, Delhi and at about 2.00 - 2.30 p.m., the accused was intercepted by the DRI officials. This witness has also stated that during the search of the accused Mohd. Tahir, the DRI officials recovered 38 pieces of ladies slippers of golden colour and the sole of the ladies slippers were removed by the DRI officials and the same were found containing currency notes, concealed in the sole by making cavity in the sole. This witness has further stated that after the recovery of the currency notes in the denomination of Rs.1,000/ and Rs.500/, the DRI officials took the accused Mohd. Tahir and himself to the office of CBI Vs. Mohd. Tahir pg 28 of 34 Special Judge, CBI01, Central, Delhi 29 DRI at Lodhi Road, New Delhi, and there, they prepared the documents , which were got signed from him. The depositions of these two independent public witnesses clearly indicate that these two witnesses are not independent witnesses, as alleged by the DRI officials and they were very well known to the DRI officials, much before the alleged raid. These two witnesses appears to be the stock witnesses of the DRI. Furthermore, PW8 Mohd. Parwez, is allegedly the brother of PW11 Mohd. Sarfaraz, who was running his shop at Kabootar Market, Jama Masjid, Delhi, in the name and style of M/s. Feroze Cosmetics. It is surprising to note that accused Mohd. Tahir has preferred to visit the shop of these two witnesses, namely PW8 Mohd. Parwez and PW11 Mohd. Sarfaraz, only. Furthermore, PW11 Mohd. Sarfaraz is not a punch witness and has not joined the investigations, during the alleged recovery of FICN, from the possession of the accused.
36. The testimony of PW8 Mohd. Parwez; PW9 Prem Singh, PW11 Mohd. Sarfaraz and the testimony of DRI officials, namely CBI Vs. Mohd. Tahir pg 29 of 34 Special Judge, CBI01, Central, Delhi 30 PW5 Ms. Anju Singh, Intelligence Officer, PW6 Sh. Sanjay Kumar, Intelligence Officer, PW14 Sh. Ramesh Kumar, Senior Intelligence Officer; and PW15 Sh. Devendra Singh, Intelligence Officer, clearly indicate that two different versions have come on record, regarding the recovery of alleged FICN, from the possession of the accused, which makes the entire prosecution case, doubtful.
37. Furthermore, during the entire investigations, w.e.f. 22.06.2012 at 2.30 p.m. till the registration of the FIR on 26.06.2012 at 5.00 p.m., no information was given by any of the DRI officials, either to the local police officials or to the CBI officials, regarding the recovery of the alleged FICN, from the possession of the accused Mohd. Tahir. It is not clear as to why the DRI officials have proceeded to complete the investigation in the present case, till the date of registration of the FIR, on 26.06.2012, despite of the fact that another proceedings under The Customs Act, 1962, had already been registered against the accused, on 23.06.2012, itself. Furthermore, PW3, Shri Rajesh Dabral, has admitted in his crossexamination on 16.07.2013 that DRI CBI Vs. Mohd. Tahir pg 30 of 34 Special Judge, CBI01, Central, Delhi 31 officials were not empowered to investigate the present case and they were empowered to investigate the cases only for the offences under The Customs Act, 1962.
Link evidence regarding seizure of FICN and its deposition at Malkhana and at Bank Note Press, Nasik, Maharashtra, etc.
38. Perusal of the record shows that PW15 Devendra Singh, Intelligence Officer, has deposed that the recovered FICN were kept in a metal box and were placed in a yellow colour paper envelope and the box was wrapped with white markin cloth and sealed with the DRI seal and a paper slip bearing the signatures of accused Mohd. Tahir, DRI officials and the witnesses was affixed on it. He has further stated that he deposited the case property, except the FICN, vide memo Ex.PW3/Z7 (D25), at the valuable godown at Customs House, New Delhi, on 25.6.2012. But, he has not deposed anything about deposition of the recovered FICN at the Malkhana. The memo Ex.PW3/Z7 also indicates that the recovered FICN were not deposited at the Customs House godown. Furthermore, there is no other document or memo, which indicates that the recovered FICN CBI Vs. Mohd. Tahir pg 31 of 34 Special Judge, CBI01, Central, Delhi 32 were deposited at the Malkhana of the CBI. None of the official witnesses has deposed anything about the deposition of the recovered FICN at the Malkhana of the CBI.
39. Perusal of the record further shows that complainant Rajesh Dabral PW3, has deposed that he along with PW15 Devendra Singh, Intelligence Officer, has taken the seized FICN to the Chief Manager, Bank Note Press, Nasik Road, Maharashtra, for knowing the genuineness/ fakeness of the seized FICN, vide letter dated 26.6.2012. The letter dated 26.6.2012 has been proved on record as Ex.PW3/Z6. But, PW7 J.K. Chaudhary has deposed that he received the request of DRI, vide letter No. DRI FN No. 34/03/2012 DZU/3604 dated 06.08.2012. The letter dated 06.08.2012 has been proved on record as Ex.PW7/A. PW7 has further deposed that the letter was marked to him by the General Manager, on 27.08.2012, by a reference slip of a Unit of SP MICL, and vide above reference slip, he acknowledged the receipt of the FICN and a copy of the panchnama, vide receipt bearing CNP DY No. 435/12 dated CBI Vs. Mohd. Tahir pg 32 of 34 Special Judge, CBI01, Central, Delhi 33 27.8.2012, which was issued to Dy. Director, DRI, DZU, New Delhi, through DRI representative Rajesh Dabral, SIO and Sh. Devendra Singh, IO, on the same day. This receipt has been proved on record as Ex.PW7/B. These two documents, i.e., Ex.PW7/A and Ex.PW7/B, clearly indicate that the FICN had remained in custody of the DRI officials, till 27.8.2012. There is no explanation as to why the DRI officials had kept the seized FICN with them. They have failed to explain as to why the seized FICN was not handed over by them to the investigating officer of the present case, namely, PW16 SI Ms.Risinamol K.C., despite of the fact that the investigation of this case had already been entrusted to her on 27.6.2012.
40. In view of the above discussions and the material discrepancies on record, I am of the considered opinion that the prosecution has failed to prove its case against the accused, beyond a shadow of doubt and therefore the accused Mohd. Tahir is hereby acquitted for the offences punishable u/s. 120B, 489B & 489C IPC. CBI Vs. Mohd. Tahir pg 33 of 34 Special Judge, CBI01, Central, Delhi 34
41. The accused shall furnish a personal bond in the sum of Rs.
20,000/ with one surety in the like amount, as per the provisions of Section 437A Cr.P.C. The bail bond has not been furnished by the accused.
42. The accused is further directed to appear before the Appellate Court, in case, any notice or summons are issued to him, by the Appellate Court, in the appeal, preferred by the prosecution/ CBI, against his acquittal in the present case, if any.
It is ordered accordingly.
File be consigned to record room, after due compliance.
Announced in open Court
on this 7 day of August, 2014 BRIJESH KUMAR GARG
th
Special Judge:CBI01
Central District. Delhi
CBI Vs. Mohd. Tahir pg 34 of 34 Special Judge, CBI01, Central, Delhi