Delhi District Court
Singh Caveeshar vs State Of Maharashtra (And Connected ... on 22 April, 2013
IN THE COURT OF SH. SUDESH KUMAR
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE01, NEW DELHI
DISTRICT:
PATIALA HOUSE COURTS: DELHI
FIR NO.: 119 OF 2007
POLICE STATION: IGI AIRPORT
U/S: 420/468/471/120 B IPC & 12 PASSPORT ACT
IN THE MATTER OF
STATE
VS
SHAMBOO NATH RAM & OTHERS
(i) Shamboo Nath Ram
S/o Mr. Gulab Chander Ram
R/o Village Meghamath, PS Banshdhih Road,
District Ballia, UP
(ii) Prem Kumar
S/o Mr. Gopi Krishan
R/o Mohalla Lal Diggi,
PS Rajghat, District Gorakhpur, UP
FIR NO.: 119 OF 2007
POLICE STATION: IGI AIRPORT
U/S: 420/468/471/120 B IPC & 12 PASSPORT ACT 1 of 14
(iii) Mohd. Rashid Khan
S/o Mr. Mohd. Shahid Khan
R/o House No. 258/31, Nadan Mahal, Lucknow, UP
(iv) Javed Naqbi
S/o Late Sh. Athar Ali
R/o 164/16, Karnal Kilat, Raja Miya Marg,
Govind Road Chauraha, Aminabad, PS Wazirganj, Lucknow, UP
Date of institution:24.05.2007
Date of reserving Judgement/Order:12.04.2013
Date of Pronouncement of Judgement/Order:22.04.2013
Brief statement of reasons for such decision :
1.As per prosecution story, the accused Shamboo Nath Ram being passenger entered into a conspiracy with co accused Prem Kumar to facilitate journey of Shamboo Nath Ram by arranging forged ECNR (Emigration Clearance Not Required) stamp on his passport bearing no. F3871957 for unlawful consideration and in pursuance to that conspiracy, the accused Shamboo Nath Ram produced the aforesaid passport before the clearing officer on 26.03.2007 at departure left wing of immigration for clearance. On scrutiny of the passport, it was found that the ECNR stamp and the signature of ECNR authority of RPO Lucknow affixed at page no. 5 of the aforesaid passport was forged.
On these allegations, the present case was registered against accused Shamboo Nath Ram, he was arrested and his travel documents were taken into possession. On questioning, he revealed that the ECNR stamp and his journey was arranged by his brotherinlaw Saral Ram. During investigation, Saral Ram was examined FIR NO.: 119 OF 2007 POLICE STATION: IGI AIRPORT U/S: 420/468/471/120 B IPC & 12 PASSPORT ACT 2 of 14 and he stated that ECNR stamp and air ticket for Muscat for accused one Dinesh Kumar and Shamboo Nath Ram were arranged by Prem Kumar owner of M/s Utsav Travels Pvt. Ltd. Gorakhpur for Rs. 14,000/ each. At the instance of Bihari Lal and Saral Ram a raid was conducted at M/s Utsav Travels Pvt. Ltd. Gorakhpur and its owner Prem Kumar was arrested from the office. Accused Prem Kumar further disclosed name of one Mohd. Rashid whom he had paid Rs. 5,000/ for arranging the ECNR stamp and on his disclosure, Mohd. Rashid was arrested who further disclosed name of one agent Javed Naqbi who was also arrested. Mr. Saral Ram has been arrayed as a witness in the list of witnesses.
2. After investigations, charge sheet in the matter was filed against all accused for the offences u/s 420/468/471/120 B IPC & 12 Passport Act.
3. Accused persons Mohd. Rashid and Javed were discharged by Ld. Predecessor vide order dated 02.07.2007.
4. It is also found that there are three other FIRs bearing FIR No. 218/07, FIR No. 125/07 and FIR No. 118/07, all pertaining to PS IGI Airport registered against accused Prem Kumar (being agent) for arranging forged ECNR stamps for different passengers pending trial in the Court alongwith the present case.
5. Charge for the offences U/s 120 B IPC, 420 r/w 120 B IPC and 471 r/w 120 B IPC was settled against accused Shamboo Nath Ram and Prem Kumar on 02.07.2007 by my Ld. Predecessor to which they pleaded not guilty and claimed trial.
6. Thereafter, prosecution has examined total 10 witnesses out of 12 witnesses cited in the list of witnesses.
(i) PW 1 SAG Mahesh Singh took the travel documents and rukka alongwith accused Shamboo Nath Ram to the police station and handed over the same to the duty officer. He proved the seizure memo Ex. PW 1/A vide which, the documents were seized.
FIR NO.: 119 OF 2007 POLICE STATION: IGI AIRPORT U/S: 420/468/471/120 B IPC & 12 PASSPORT ACT 3 of 14 In his cross examination by Ld. Defence Counsel for accused Shamboo Nath Ram and Prem Kumar, he denied that a false FIR was registered in connivance with the police officials or that no passenger was handed over to him and he signed the blank papers at the instance of IO.
(ii) PW 2 Ct. Sunil Kumar is a formal witness and he has proved the arrest of the accused Shamboo Nath Ram vide arrest memo Ex. PW 2/A, his personal search vide Ex. PW 2/B and his disclosure statement vide memo Ex. PW 2/C.
(iii) PW 3 K.K. Singh, JIOI, IGI Airport, New Delhi who was working as a Clearing Officer at departure left wing of immigration on 26.03.2007, the passenger Shamboo Nath Ram approached him for clearance with his passport and on scrutiny, he found that ECNR stamp and signature on page no. 5 of his passport was forged. He also questioned him and the accused disclosed that his journey was arranged by his brotherin law Saral Ram. He proved his complaint Ex. PW 3/A and travel documents Ex. P 1 to Ex. P 4.
During his cross examination by Ld. Defence Counsels for both accused persons, he denied that he was deposing falsely and nothing material has come up on record which could discredit the testimony of PW 3.
(iv) PW 4 Ct. Surender Singh proved the arrest of accused Prem Kumar at the instance of Saral Ram (bother in law of accused Shamboo Nath). The accused Prem Kumar was also interrogated in his presence and his disclosure statement was recorded vide memo Ex. PW 4/A. He also deposed about the arrest of accused Rashid Khan and Javed Naqbi (since discharged) whose names were disclosed by accused Prem Kumar in his disclosure statement.
(v) PW 5 Bihari Lal is the father of accused Dinesh Kumar and he deposed FIR NO.: 119 OF 2007 POLICE STATION: IGI AIRPORT U/S: 420/468/471/120 B IPC & 12 PASSPORT ACT 4 of 14
that his son was inclined to go Muscat for earning a livelihood and for this purpose, he had a talk with his son in law Ram Milan. In the month of March, 2007 as there was a need of ticket for sending his son go abroad, he went to the office of accused Prem Kumar at Gorakhpur. The accused Prem Kumar told him that stamp of immigration is also required to go abroad with air ticket and he demanded Rs. 14,000/ for air ticket and stamp and on 10.03.2007, the payment of Rs. 28,000/ for accused Dinesh Kumar and Shamboo Nath was made to accused Prem Kumar of Utsav Travels by Bihari Lal and brotherinlaw of accused Shamboo Nath Ram namely Mr. Saral Ram. On 24.03.2007, accused Prem Kumar informed him that the papers are available and asked him to collect the same from his office and he handed over the air ticket and photocopy of visa and passport of both accused Dinesh and Shamboo to them. On 26.03.2007, both accused Dinesh and Shamboo arrived at IGI Airport and produced their documents. When their documents were checked by the immigration officers, they were apprehended as the ECNR stamp was found fake. On the information given by the accused on telephone about his arrest, he came to Delhi and his statement was recorded. On 01.04.2007, Delhi police officials reached Gorakhpur alongwith accused Dinesh and Shamboo Nath and the police officials met him and Saral Ram. Then at their instance, police arrested the accused Prem Kumar vide arrest memo Ex. PW 5/A and his personal search was conducted vide memo Ex. PW 5/B and his office was also searched and some documents were taken into possession vide memo Ex. PW 5/C. This witness was not cross examined by the accused Shamboo Nath Ram despite opportunity given to him.
Even in his cross examination by accused Prem Kumar, nothing could be brought on record which could show any ground for previous enmity or for his false implication. Nothing material has come up on record to discredit his testimony.
FIR NO.: 119 OF 2007 POLICE STATION: IGI AIRPORT U/S: 420/468/471/120 B IPC & 12 PASSPORT ACT 5 of 14 (vi) PW 6 Mr. Saral Ram is also one of the relative's of accused Shamboo
Nath. He alongwith father of accused Dinesh namely Bihari Lal visited the office of accused Prem Kumar, Utsav Travels at PS Cantt Gorakhpur for air tickets. The accused Prem Kumar met them and he was shown the passport of accused Dinesh and Shamboo and their visas. The accused Prem Kumar demanded Rs. 14,000/ for each person for their ticket and immigration and this incident took place on 10.03.2007. On 24.03.2007 between 67 pm, the accused Prem Kumar called him telephonically and told that tickets and stamps have been arranged and he asked them to collect the same. Then he alongwith Bihari Lal reached Utsav Travels, office of Prem Kumar who handed over passport, visa and tickets to them and told them that immigration has been done and they can send their children abroad and the flight is scheduled for 26.03.2007 at 6 AM. On 26.03.2007, when accused Dinesh and Shamboo approached for immigration clearance, they were apprehended as their immigration was false. They pointed out the office of Utsav Travels to the police when police officials visited Cantt, Gorakhpur with accused Shamboo and Dinesh. At their instance, accused Prem Kumar was arrested and documents were seized from his office.
This witness was also not cross examined by accused Shamboo Nath Ram despite opportunity for the same being given.
In his cross examination by Ld. Defence Counsel for accused Prem Kumar, he denied that he is involved in obtaining visa through his brother for sending his villagers to abroad and he had purchased the air tickets for villagers and relatives from Utsav Travels who had visited abroad earlier. He further denied that he had not purchased any ticket for Shamboo from Utsav Travels or that Shamboo had himself purchased the tickets from Utsav Travels and Utsav Travels only sales tickets and not involved in immigration clearance/ECNR. He further denied that Shamboo and Dinesh themselves had approached to Dania Travel at Lucknow for immigration clearance and got it FIR NO.: 119 OF 2007 POLICE STATION: IGI AIRPORT U/S: 420/468/471/120 B IPC & 12 PASSPORT ACT 6 of 14 arranged from there. He further denied that Prem Kumar is an employee of Utsav Travels and he did not accompany the police to the office of Utsav Travels and no proceedings were conducted in his presence.
(vii) PW 7 Mr. Sushil Bhalla, Superintendent, RPO Lucknow has proved the report of RPO, Lucknow vide Ex. PW 7/A and identified the signatures of Mr. N.K. Kaushik on this report. He deposed that the page no. 5 of the passport of the accused Shamboo Nath Ram Ex. P 1 having the ECNR stamp with his signatures was totally forged and did not belong to him and the seal/ECNR stamp was also fake.
This witness was also not cross examined by accused Shamboo Nath Ram despite opportunity for the same being given.
In his cross examination by Ld. Defence Counsel for accused Prem Kumar, he deposed that he was working as Policy Section Incharge before March 2007 and the ECNR stamping was done in passport office, Lucknow and he never remained incharge of ECNR stamp clearing section. He deposed that he does not know who was Incharge of ECNR clearance in March, 2007 or before that and no opinion was sought from them in respect of ECNR stamp in question at page no. 31. He had seen the passport and report in the Court Ex. PW 7/A. He deposed that he was not expert in verification of signatures and never worked in CFSL. He further deposed that since the stamp in question belongs to him therefore, he can say that it had been forged. He deposed that he was working with Mr. Kaushik while he was superintendent and his duty was to supervise different sections of the office. He deposed that the report was not signed and prepared in his presence and he denied the suggestion that due to this reason, he is not sure whether the report was signed by Mr. N.K. Kaushik. He also denied that his signatures were genuine in respect of the said stamp and he was deposing falsely.
(viii) PW 8 Inspector Arun Kumar Chaudhary joined the investigation with FIR NO.: 119 OF 2007 POLICE STATION: IGI AIRPORT U/S: 420/468/471/120 B IPC & 12 PASSPORT ACT 7 of 14
SI Vinod Kumar on 31.03.2007 and visited Gorakhpur for the search of accused Prem Kumar. On 01.04.2007 with the assistance of local police, a raid was conducted at Utsav Travels at Gorakhpur in the presence of Bihari Lal, Saral Ram and at their instance the accused Prem Kumar was arrested vide arrest memo Ex. PW 5/A and his personal search was conducted vide memo Ex. PW 5/B. He was interrogated and his disclosure statement was recorded vide memo Ex. PW 4/A and documents were recovered from his office which are Mark A1 to A5 and seized vide memo Ex. PW 5/C. The accused Prem Kumar disclosed the name of accused Mohd. Rashid and accused Javed (since discharged). The accused Ram Dhani and Shamboo accompanied them at the time of arrest of accused Prem Kumar. The passengers namely Ram Dhani, Dinesh and Shamboo Nath Ram were also accompanying this witness.
The witness was not cross examined by accused Shamboo Nath Ram despite opportunity for same being given.
In his cross examination by Ld. Defence Counsel for accused Prem Kumar, he deposed that the documents relating to tours and travels were taken into possession from the office of accused Prem Kumar, however, he could not tell about the exact details of the said documents. No passport, visa or ticket was recovered from the office of accused Prem Kumar. He further denied that he did not visit the office of accused Prem Kumar or that Prem Kumar was called at the police station and was arrested by him.
(ix) PW 9 SI Ashok Kumar was DO in the present case. He proved the present FIR No. 119/07 as Ex. PW 9/A and his endorsement Ex. PW 9/B on the complaint and seizing of the travel documents as Ex. PW 1/A.
(x) PW 10 SI Vinod Kumar, IO in the present case interrogated the accused Shamboo Nath Ram and arrested him vide memo Ex. PW 2/A, conducted his personal search vide memo Ex. PW 2/B and recorded his disclosure statement as Ex. PW 2/C. The FIR NO.: 119 OF 2007 POLICE STATION: IGI AIRPORT U/S: 420/468/471/120 B IPC & 12 PASSPORT ACT 8 of 14 accused disclosed the name of M/s Utsav Travels, Gorakhpur and also disclosed the name of agent as Prem Kumar. On 01.04.2007, he alongwith Ct. Ratan, Ct. Surender and other SI Arun Kumar Chaudhary reached Gorakhpur and made the arrival entry at Cantt Station at Gorakhpur and Bihari Lal and Saral Ram also joined them and then a raid was conducted at the office of M/s Utsav Travels. They identified one person sitting there as Prem Kumar being an agent to whom they stated that they had given Rs. 14,000/ for each person to arrange the ECNR stamp on their passport. He proved the arrest memo of accused Prem Kumar as Ex. PW 5/A, his personal search memo as Ex. PW 5/B and his disclosure statement as Ex. PW 4/A. The accused Prem Kumar disclosed that ECNR stamp was arranged through Dhaniya Travels Lucknow and he had given Rs. 5,000/ for each passport. He further deposed that they alongwith accused Prem Kumar went to Lucknow and raided the office of Dhaniya Tour and Travels where one boy Rashid Khan was arrested. He disclosed that he has taken Rs. 5,000/ from each passport from him. He was arrested vide memo Ex. PW 4/B and his personal search was conducted vide memo Ex. PW 4/C and his disclosure statement was recorded as Ex. PW 4/D. The accused Rashid disclosed that he arranged the stamp through Javed Naqbi who was also apprehended vide arrest memo Ex. PW 4/E. The passport and ECNR stamp were got verified from the RPO Lucknow and the report was collected.
In his cross examination by Ld. Defence Counsel for accused Shamboo Nath Ram, he stated that his police remand was from 26.03.2007 and was produced on 28.03.2007 and disclosure statement was recorded on 26.03.2007.
In his cross examination by Ld. Defence Counsel for accused Prem Kumar, he corroborated the fact of his visit to the office of Prem Kumar with Bihari Lal, Saral Ram, Ct. Surender, Ct. Rattan, accused Ram Dhani and SI Arun Kumar. He deposed that he did not prepare the site plan regarding the position of the office of accused Prem Kumar. He admitted that 1020 public persons were gathered there. They prepared the FIR NO.: 119 OF 2007 POLICE STATION: IGI AIRPORT U/S: 420/468/471/120 B IPC & 12 PASSPORT ACT 9 of 14 Khana Talashi which was signed by public witnesses, however, he admitted that he could not seize any document which could show that accused Prem Kumar was the owner of the said office. He could not tell as to how many papers were seized from his office. He denied that he did not visit the office of Prem Kumar or that no one was with them at that time or that the accused Prem Kumar was called at Police station on telephone and was directed to produce some documents which were seized by him.
7. No other witness was examined in PE and PE hence was closed and the matter was fixed for statement of accused Dinesh Kumar and Prem Kumar u/s 313 Cr. PC.
8. The entire aforesaid incriminating evidence produced by the prosecution was put to the accused Shamboo Nath Ram and his statement u/s 313 Cr. PC was recorded separately. The accused in his statement tendered u/s 313 Cr. PC stated that ECNR stamp was arranged by accused Prem Kumar and he admitted that he produced passport having forged ECNR stamp and signatures of issuing authority at departure left wing of IGI for immigration clearance which was arranged by his co accused Prem Kumar which was used as a genuine one. He also admitted his arrest. He further stated that he is innocent and a false case has been registered against him. He further stated that all the witnesses have falsely deposed against him. He declined to lead DE.
9. The entire aforesaid incriminating evidence produced by the prosecution was put to the accused Prem Kumar and his statement u/s 313 Cr. PC was also recorded separately. This accused also in his statement tendered u/s 313 Cr. PC denied that he in conspiracy facilitated the journey of co accused Dinesh by arranging forged ECNR stamp and signatures of issuing authority, RPO Lucknow on his passport for unlawful consideration. He also denied about the visiting of PW 5 Bihari Lal at his office and about taking of money for the immigration stamp and for air ticket from them. He also denied that he is the owner of Utsav Travels. He said that he was a servant there and Saral FIR NO.: 119 OF 2007 POLICE STATION: IGI AIRPORT U/S: 420/468/471/120 B IPC & 12 PASSPORT ACT 10 of 14 Ram used to visit that office for the purpose of booking of air tickets. He admitted about issuance of air tickets from office. He stated that he has been falsely implicated in this case. He denied about the visit of Bihari Lal and Saral Ram to office on 31.03.07 or on 01.04.07. He further stated that all the witnesses have falsely deposed against him. He stated that he wanted to lead DE, but he did not produce any witness despite opportunity in his defence and DE hence was closed and the matter was fixed for final arguments.
10. I have heard Ld. APP for State and Ld. Defence counsels for accused. In the present case, the prosecution has examined 10 witnesses to prove its case. I have evaluated their testimony at length.
11. The main allegation against the accused persons is that of entering into a conspiracy to cheat the Government of India and the Immigration department by using forged ECNR stamp on passport of accused Shambu through coaccused Prem Kumar. In this regard, it is well settled that "The essence of conspiracy is that there should be agreement in persons to do one or the other of the acts described in Section 120 A IPC. The said agreement may be proved by direct evidence or may be inferred from the acts and conduct of parties. There is no difference between the proof of mode of conspiracy and that of any other offence. It can be established by direct evidence or by circumstantial evidence but Section 10 of the Evidence Act introduces the Doctrine of Agency and if the conditions laid down therein are satisfied the act done by one are admissible against co conspirators. The evidentiary value of the said act is limited by two circumstances namely the acts shall in reference to the common intention and in respect of the period after such intention was entertained by anyone of them. The expression in reference to your common intention is very comprehensive and appears to have been designedly used to give it a wider scope than the words in furtherance of. In English law with the result, anything said, done or written by co conspirators the conspiracy was formed, will be evidence against the other before he entered the field of conspiracy or FIR NO.: 119 OF 2007 POLICE STATION: IGI AIRPORT U/S: 420/468/471/120 B IPC & 12 PASSPORT ACT 11 of 14 after he left it. Another important limitation implicit in the language is indication by the expressed scope of its relevancy. Anything so said, done or written is a relevant fact as against each of the persons believed to be so conspiry as well as for the purpose of proving the existence of conspiracy as for the purpose of showing that any such person was a party to it." as held by the Hon'ble Supreme Court of India in Sardar Sardul Singh Caveeshar Vs State of Maharashtra (And Connected Appeals) dated 18.03.1963.
12. In the present case, the testimony of prosecution witnesses is clear, cogent and corroborating. The PW 5 Mr. Bihari Lal and PW 6 Mr. Saral Ram have stated in consonance and are found trustworthy. Both have proved the conversation which took place among the accused persons. As per their testimony, the accused Shamboo Nath Ram did not ask at any point of time about the genuineness of the stamp going to be arranged by Prem Kumar for him. They have also proved the arrangement of ECNR stamp by accused Prem Kumar against payment of Rs. 14,000/. The participation of accused in commission of actual act of using the forged stamp is the result of conspiracy already hatched. They used forged stamp as genuine dishonestly to clearance officer and this illegal act was done in pursuance of the said agreement.
It appears from the cross examination by the accused Prem Kumar that he is not clear about his defence. On one hand, he puts his suggestion to the witness that he had not purchased any ticket for Shamboo from Utsav Travels, on the other hand, he puts the suggestion that Shamboo himself purchased the tickets from Utsav Travels and the accused himself proved his connection with the Utsav Travels even he has put to the witness that he was an employee of Utsav Travels.
13. Another witness PW 7 Mr. Sushil Bhalla has categorically deposed about his forged signatures on the ECNR stamp as well as about the ECNR stamp on the passport of accused Shamboo Nath Ram. The prosecution succeeded in proving that Mr. FIR NO.: 119 OF 2007 POLICE STATION: IGI AIRPORT U/S: 420/468/471/120 B IPC & 12 PASSPORT ACT 12 of 14 Sushil Bhalla is not the author of that stamp. The testimony of this witness show that he never worked in that department. It proves beyond reasonable doubt that the stamp is forged. During his cross examination by defence Counsel, nothing has come on record which could shaken the credibility of this witness.
14. Further, during cross examination of PW 5, PW 6 & PW 7, no material contradictions were brought on record and there is nothing to impeach the testimony of the witnesses which show their credibility. All the witnesses were found corroborating each other on the aspect of arranging the forged ECNR stamp and making of payment in cash as an unlawful consideration for facilitation of the journey. The gist of conspiracy is that two or more persons did continuously confederate and agree together to carry out the object of conspiracy and as per the act of accused Prem Kumar and accused Shamboo Nath Ram, it is clear that both acted as agreed upon.
15. PW 8 Inspector Arun Kumar Chaudhary and PW 10 SI Vinod Kumar were the IOs in the present case who deposed on the similar lines regarding the arrest of the accused Shamboo Nath Ram & Prem Kumar and he further deposed that the accused Ram Dhani and Dinesh Kumar (in connected FIR No. 118/07 & 125/07) were with them when the accused Prem Kumar was arrested. Nothing has come up on record in their cross examination by defence to support them and to disprove the prosecution case.
16. PW 4 Ct. Surender Singh is also corroborating the version of PW 8 Inspector Arun Kumar Chaudhary regarding the arrest of accused Prem Kumar as well as about the presence of accused Shamboo Nath Ram with them. Nothing material in order to strengthen the defence of the accused had come up on record to discredit the testimony of this witness.
17. While appreciating evidence, number of witnesses is not material rather it is quality of evidence which is important. It has to be seen whether the evidence adduced FIR NO.: 119 OF 2007 POLICE STATION: IGI AIRPORT U/S: 420/468/471/120 B IPC & 12 PASSPORT ACT 13 of 14 has a ring of truth, is cogent, credible and trustworthy. The testimony of all the witnesses in the present case is cogent and corroborating.
18. Taking into consideration the entire facts and circumstances and the abovementioned observations, I am of the considered view that the prosecution has proved its case against accused Shamboo Nath Ram and Prem Kumar beyond reasonable doubts. Accused Shamboo Nath Ram and Prem Kumar, hence stand convicted for the offences as alleged against them in the present case.
Let they be heard on sentence on 23.04.2013 at 2 PM.
(ANNOUNCED IN THE OPEN SUDESH KUMAR COURT ON 22th April, 2013) ADDITIONAL CHIEF METROPOLITAN MAGISTRATE01 This Judgment contains 14 pages NEW DELHI DISTRICT and each paper is signed by me. PATIALA HOUSE COURTS,DELHI FIR NO.: 119 OF 2007 POLICE STATION: IGI AIRPORT U/S: 420/468/471/120 B IPC & 12 PASSPORT ACT 14 of 14