Delhi District Court
State vs . Mohd. Farooq Etc. on 11 May, 2012
State Vs. Mohd. Farooq etc.
IN THE COURT OF SHRI GURVINDER PAL SINGH
ADDL. SESSIONS JUDGE(FTC), SOUTH DISTRICT
SAKET COURTS, NEW DELHI
Session Case No. 53/2011
Unique ID No.: 02403R0053682008
State Vs. : Mohd. Farooq
S/o Sh. Shaukat Ali
R/o Near Masjid, Gali No. 2,
Zakir Nagar, Delhi.
Permanent Add: VPO Naya
Nagar, Village Mahagana,
District Godola, Jharkhand.
(2) Mohd. Faiyaz Alam @
Chand
S/o Mohd. Izaz
R/o P42, Gali No. 6, Batla
House, Okhla, New Delhi.
(3) Abul Kalam Azad @
Guddu
S/o Mohd. Nuruddin
R/o F33, Abul Fazal Enclave,
Shahin Bagh, Okhla, New Delhi.
FIR No. 407/2004
SC No. 53/2011 1/21
State Vs. Mohd. Farooq etc.
P.S. New Friends Colony
U/s 489C IPC
Date of Institution : 22/01/2008
Date when arguments
were heard : 11/05/2012
Date of Judgment : 11/05/2012
JUDGMENT
BRIEF FACTS:
Factual matrix of the prosecution case is as follows:
At 2.30pm on 27.08.04, SI Balbir Singh (PW1), of Anti Robbery Cell, Crime Branch was informed by secret informer at his office at R.K Puram that Farooq who resides in Zakir Nagar and Faiyaz Alam @ Chand who resides in Batla House will come at about 5.00 pm for delivery of counterfeit currency notes at Community Centre, New Friends Colony, if raided, they can be apprehended with counterfeit currency notes. SI Balbir Singh (PW1) informed Inspector Rajender Bakshi who satisfied himself about the information from the secret informer and the circumstances were told to the senior officials. On the direction of the senior SC No. 53/2011 2/21 State Vs. Mohd. Farooq etc. officials, a raiding party under the supervision of Inspector Rajender Bakshi was formed consisting of SI Pankaj Yadav (PW5), SI Balbir Singh (PW1), Ct. Anil Kumar, Ct. Ravinder and Ct. Harish Chand.
The raiding party with secret informer in a private vehicle reached at 4.30pm at Community Centre, New Friends Colony. 4/5 passerbyes were told of the secret information, asked to join raiding party but all disclosed their reasonable disabilities, without telling their names and addresses went away from the spot. Without wasting time, the members of the raiding party took their positions near Nathu Sweets. On the pointing of the secret informer, from near the fountain, accused Farooq and Faiyaz were apprehended by the members of the raiding party at 5.15pm. SI Balbir Singh (PW1) conducted the search of Farooq. From right pocket of worn pant of Farooq in a polythene, 80 currency (counterfeit) notes of Rs. 100/ denomination each wrapped in a newspaper which by look appeared counterfeit were recovered and all of them were having number 8GQ637227. Said 80 counterfeit currency notes were wrapped in the same paper, converted in a cloth parcel and seized. SI Balbir Singh (PW1) also conducted the search of accused Faiyaz. From right pocket of worn pant of SC No. 53/2011 3/21 State Vs. Mohd. Farooq etc. accused Faiyaz in a white envelope, 50 currency (counterfeit) notes of denomination of Rs. 100/ each having on all of them number 8GQ637227 were recovered and which also by appearance appeared counterfeit. Said 50 notes were kept in the same white envelope and converted into a cloth parcel, sealed and seized. Seal after use was given to Ct. Ravinder. Upon inquiry, accused Mohd. Farooq and Faiyaz disclosed that said counterfeit currency notes were to be delivered to Amit named boy. SI Balbir Singh (PW1) prepared tehrir, Ex. PW1/C, sent Ct. Anil to Police Station New Friends Colony for registration of FIR also asking further investigation to be given to SI Surender Rana (PW7) who had been called at the spot on telephone and who had come there. The Duty Officer, HC Rohtash (PW2) of PS New Friends Colony recorded FIR No. 407/04 under Section 489B and 489C IPC, gave copy of FIR and rukka to Ct. Anil to be given to SI Surender Rana for investigation. SI Balbir Singh (PW1) handed over the accused Farooq and Faiyaz, seizure memos to SI Surender Rana (PW7). SI Surender Rana (PW7) arrested the said accused, conducted their personal searches and also recorded their disclosure statements. SI Surender Rana (PW7) also seized SC No. 53/2011 4/21 State Vs. Mohd. Farooq etc. motorcycle number DL3SAH5966 which was got recovered by accused Faiyaz from the parking opposite to Nathu Sweets. Also SI Surender Rana (PW7) prepared site plan at the instance of SI Balbir Singh (PW1).
2. On receipt of secret information, SI Surender Rana (PW7) with Ct. Govind Bisht (PW4) went to Community Centre, New Friends Colony near McDonald restaurant on 06.10.04 and apprehended and arrested accused Abul Kalam Azad @ Guddu about whom the aforesaid earlier arrested accused had disclosed. Disclosure statement of accused Abul Kalam Azad @ Guddu was recorded. Accused Abul Kalam Azad @ Guddu led SI Surender Rana (PW7) and Ct. Govind Bisht (PW4) to house no. F33, Abul Fazal Enclave, Shahin Bagh, Okhla, where he resided in the house of his cousin. From an iron almirah kept in a room of said house, accused Abdul Kalam Azad @ Guddu took out and produced 12 currency notes of denomination of Rs. 100/, all having number 8GQ637227, which on appearance appeared to be counterfeit. Said currency notes were kept in an envelope, sealed and seized. The SC No. 53/2011 5/21 State Vs. Mohd. Farooq etc. recovered counterfeit currency notes were sent to Currency Note Press, Nashik for expert opinion. The Assistant Work Manager, India Security Press, Currency Note Press, Nashik Road in the report dated 07.12.04 opined that the examined 142 currency notes of denomination of Rs. 100/ each were counterfeit.
3. On conclusion of the investigation, charge sheet for offences under Section 489B IPC and 489C IPC was filed.
4. After completing the requirements under Section 207 Cr.P.C., case was committed to the court of Sessions. CHARGE
5. Charges for offence under Section 489C IPC was framed against the accused persons by my Ld. Predecessor on 31.08.10 to which the accused persons pleaded not guilty and claimed trial. Amended charge was framed against accused Abul Kalam Azad @ Guddu on 21.07.11 for offence under Section 489C IPC to which he pleaded not guilty and claimed trial.
SC No. 53/2011 6/21
State Vs. Mohd. Farooq etc. WITNESSES:
6. To connect the accused with the offences charged, prosecution has examined in all 7 witnesses namely SI Balbir Singh (PW1); HC Rohtash (PW2); Ct. Devi Dayal (PW3); Ct. Govind Bisht (PW4); SI Pankaj Yadav (PW5); HC Rangrao (PW6) and SI (now Inspector) Surender Rana (PW7).
STATEMENT OF ACCUSED:
7. Thereafter accused persons were examined under Section 313 Cr.P.C. All incriminating material in evidence was put to the accused persons. All accused pleaded innocence and false implication.
8. Accused Mohd Farooq stated that he had taken a room on rent at Zakir Nagar and he was a student in Jamia Milia Islamia University; 4/5 police officials took him from his room for enquiries but instead falsely implicated him in this case.
9. Accused Mohd Faiyaz stated that 4/5 police officials SC No. 53/2011 7/21 State Vs. Mohd. Farooq etc. came in evening time at his house, took him for enquiries at R.K Puram but instead falsely implicated him in this case.
10. Accused Abul Kalam Azad stated that he was living in rented premises no. 1407, 3rd Floor, Kotla Mubarak Pur where 5/6 persons in civil clothes came and took him from his house for enquiries stating them to be the police officials. Also he stated that he was taken to R.K Puram and enquired about his coaccused persons. As per accused Abul Kalam Azad he was knowing Chand @ Faiyaz who was of his native village but was not knowing accused Farooq.
11. All accused denied to lead defence evidence. ARGUMENTS
12. I have heard the arguments of Ld. Addl. PP for the State, the defence counsel and have perused the record including the evidence led and given my thoughts to the rival contentions put forth. SC No. 53/2011 8/21
13. Ld. Addl. PP for the State argued that the officials/police witnesses have given consistent version and corroborated the presented case of prosecution and infact proved the recovery of stated counterfeit currency notes from the possession of the accused and the expert from the Nasik Press had opined of the notes to be counterfeit and has prayed for conviction of the accused persons for unlawful possession of said counterfeit currency notes.
14. Ld. Counsel for accused argued that the cited and examined officials/police witnesses of the alleged recovery in their testimonies narrated of contradictory and inconsistent version; even PW1 wrongly identified accused Abul Kalam Azad to be the accused Mohd Farooq; also SI Balbir Singh (PW1) testified of different numbers of the currency notes alleged to be recovered from the possession of the accused and what were produced in evidence; despite the fact that accused persons were stated to be arrested at a busy market place, no efforts had been made to join any independent witness, shopkeeper and customers available there in apprehension/arrest of the accused and alleged recovery from the SC No. 53/2011 9/21 State Vs. Mohd. Farooq etc. accused Mohd Farooq and Mohd Faiyaz. Even no neighbors were joined in the search of the alleged house of the accused Abul Kalam and also qua alleged recovery of 12 counterfeit currency notes there from at the instance of accused Abul Kalam. The material witnesses SI Surender Rana (PW7) and Ct Govind Bisht (PW4) testified different versions in respect of the room where the almirah was kept where from counterfeit currency notes were so recovered. It has also been argued that the police witnesses in the absence of corroboration from independent version by virtue of their inter se contradictory testimonies are lacking credence, not trustworthy, cannot be believed upon to rest conviction of any or all accused. Ld. Counsel for accused persons prayed for acquittal of the accused persons. APPRECIATION OF EVIDENCE
15. In terms of presented case of prosecution, the secret information was received by SI Balbir Singh (PW1) in his office at R.K Puram at 2.30 pm. In Ex PW1/C, ruqqa regarding secret information given by secret informer in person to SI Balbir Singh (PW1), there is clear mention of the names of accused Mohd Faiyaz SC No. 53/2011 10/21 State Vs. Mohd. Farooq etc. Alam @ Chand and Mohd Farooq and even their places of abode and the exact time of their prospective arrival in the Community Centre at New Friends Colony. Charge sheet embodies the fact of not only the raiding party was organized in the supervision of Inspector Rajinder Bakshi who had satisfied himself with the talk with the secret informer but said Inspector Rajender Bakshi had himself accompanied to the Community Centre, New Friends Colony. No where in their deposition SI Balbir Singh (PW1) as well as SI (resigned) Pankaj Yadav (PW5), they made any whisper of Inspector Rajender Bakshi having accompanied them. It is mentioned that six police officials and the secret informer went in a private vehicle. The description of the said private vehicle is not made vivid and clear in any document of the prosecution namely charge sheet, tehrir or otherwise. From where did the officers of investigating agency had arranged the said vehicle, there is no mention in the evidence on record. Also on record, no copies of any daily diary have been annexed and proved for departure of the members of the raiding party from their office or their return back.
SC No. 53/2011 11/21
16. In the course of his examination SI Balbir Singh (PW1) testified that after reaching the spot at 4.30 pm, they all assumed position near Community Centre near Nathu Sweets, New Friends Colony; at 5.05 pm on 27/08/2004 the secret informer pointed towards accused Faiyaz and Farood who were standing there and who were over powered and apprehended. SI Balbir Singh (PW1) deposed that from the right pocket of worn pant of accused Farooq 80 counterfeit currency notes of 100 denomination each bearing no. 8GQ687227 were recovered. Also SI Balbir Singh (PW1) stated that from the right pocket of worn pant of accused Faiyaz 50 counterfeit currency notes of 100 denomination each bearing no. 8GQ687227 were recovered. Whether the notes were simply kept in the pockets of the accused or wrapped in some other articles, on that aspect the witnesses of the alleged recovery testified at variance, in material contradiction with each other. SI Balbir Singh (PW1) stated that at the time of recovery of notes from accused Farooq and Faiyaz, they were wrapped in the newspapers though the said newspapers were not seized. Even SI Balbir Singh (PW1) was not clear when asked in the course of cross examination that whether he had stated said fact to the SC No. 53/2011 12/21 State Vs. Mohd. Farooq etc. IO in his statement or in tehrir Ex PW1/C. There was no mention of such notes being wrapped in newspapers at the time of such recovery. Per contra, in the course of his cross examination, SI Pankaj Yadav (PW5) stated that such currency notes when recovered from the pocket of accused Farooq and Mohd Faiyaz were not covered by anything. Ex PW1/A, seizure memo of the 50 currency notes of denomination of 100 each from accused Faiyaz finds mention of the facts of such notes being kept in white envelope and these notes to be bearing no. 8GQ637227. Ex PW1/B, seizure memo of the 80 currency notes of denomination 100 each from accused Farooq bears mention of the facts that these were the notes wrapped in newspaper which again was kept in a polythene in the said pocket of pant of accused Farooq and all notes were bearing number 8GQ637227.
17. SI Balbir Singh (PW1), a Sub Inspector of Anti Robbery Cell in the Crime Branch did not make it clear as to how he was empowered in respect of the directions contained in the tehrir Ex PW1/C asking investigation to be handed over to SI Surender Rana (PW7), of his own cell, whom he had called to the spot and who had SC No. 53/2011 13/21 State Vs. Mohd. Farooq etc. reached there before the despatch of said ruqqa. Balbir Singh (PW1) in no manner was having and direct or indirect control over SI Surender Rana (PW7), who was not his subordinate.
18. It is not to be lost sight of the fact that in terms of the presented case of prosecution, the alleged apprehension of accused Farooq and Faiyaz is at a busy place in evening time in the Community Centre of New Friends Colony. Admittedly by PWs 1 and 5, shopkeepers, public persons were available at the elbow of officers of investigating agency. What officers of investigating agency want to make believe the Court is of 4/5 passerbyes having been asked to join investigation and none having agreed and all went away. No action as per law was taken against such refusing persons. It does not go down the throat that by such assertion, it could be presumed that any reasonable efforts were made in the joining of independent witnesses in the apprehension, search and seizure from the accused regarding whom the officers of investigating agency had the complete knowledge more than two and half hours prior to their apprehension and the officers of investigating agency had ample time SC No. 53/2011 14/21 State Vs. Mohd. Farooq etc. to join independent witnesses from the market place, nearby locality to show all fairness in the act of investigating agency. Apathy remains that no fairness has been shown at all by the officers of investigating agency and their versions cannot be presumed as a gospel truth in the back drop of existence of inter se contradictions and infirmities emanating from their testimonies. Even PW1 and PW5 were unable to identify which currency notes amongst Exts P1/1 to 130 were those 80 notes alleged to be recovered from accused Farooq and amongst them which were those 50 notes alleged to be recovered from accused Faiyaz. Even in the course of the evidence SI Balbir Singh (PW1), when he was partly examined on 27/02/2012, he wrongly identified accused Abul Kalam as Mohd Farooq. On the request of Ld. Addl. PP for the State, further examination of SI Balbir Singh (PW1) was deferred on 27/02/2012. Again when SI Balbir Singh (PW1) entered into the witness box on 21/03/2012, he come wiser, perhaps was made to be so and then he pointed his finger towards accused Farooq saying him to be Farooq. This is so despite the fact that SI Balbir Singh (PW1) claims that he had apprehended these accused Farooq and Faiyaz, as aforesaid and he (PW1) had SC No. 53/2011 15/21 State Vs. Mohd. Farooq etc. searched the person of accused Farooq and Faiyaz and he was having ample time to observe the features of accused Farooq to retain them in his memory by his experience as an officer of investigating agency so as to recapitulate them, narrate them in the course of his evidence.
19. Also is the version of prosecution that at Community Centre, New Friends Colony near Mc Donand Restaurant, SI Surender Rana (PW7) accompanied by Ct Govind Bisht (PW4) had apprehended accused Abul Kalam Azad @ Guddu who was arrested vide memo Ex PW4/A and his personal search was conducted vide memo Ex PW4/B. Ct Govind Bisht (PW4) testified that at the time of apprehension of accused Abul Kalam Azad @ Guddu, there was parking attendant present in parking and 7/8 public persons were also present who were asked to join investigation but none agreed to join. In that context SI Surender Rana (PW7) tells a different tale, saying no parking attendant was there at the time of such arrest of accused Abul Kalam. Even here despite availability of public persons at the elbow of investigating officer, no independent witness(es) were joined in the apprehension of accused Abul Kalam Azad @ Guddu or his SC No. 53/2011 16/21 State Vs. Mohd. Farooq etc. search or disclosure statement allegedly given vide memo Ex PW4/C.
20. Also is the case of prosecution that it was accused Abdul Kalam Azad @ Guddu who led to house no. F33, Abul Fazal Enclave, Shahin Bagh, Okhla, New Delhi where from he had got recovered from an almirah in a room, 12 counterfeit currency notes of denomination of 100 each, Ex P2/1 to 12 which were seized vide memo Ex PW4/D. Ct Govind Bisht (PW4) says that they had gone only in one room at ground floor at said premises where the recovery was so effected. SI Surender Rana (PW7) in material contradiction to the version of Ct Govind Bisht (PW4) narrated that in all there were two rooms in the said premises and after crossing the first room from there and going into the second room the recovery was effected from the almirah from top shelf from where said counterfeit currency notes were taken out and handed by accused Abul Kalam. Ct Govind Bisht (PW4) even could not elicit as to whether the house of accused Guddu was a single storeyed house, double storeyed or three storeyed or more, despite the fact that he (PW4) claims to have gone there and witnessed the alleged recovery. Site plan Ex PW7/B prepared by SI SC No. 53/2011 17/21 State Vs. Mohd. Farooq etc. Surender Rana (PW7) depicts existence of only one room in the stated premises F33, Abul Fazal Enclave, it does not depict the existence of the two rooms as what is deposed by PW7. Version of SI Surender Rana (PW7) stands falsified on the face of record. Here also no efforts, what to say of any sincere efforts, were made to join any two neighbors in the search of the premises to show the act of fairness on the part of officers of investigating agency and to comply with the mandate laid in Section 100 (4) of the Code of Criminal Procedure. No two respectable inhabitants of the locality were asked to join investigation for search of the premises and recovery there from. Investigation on the face of record does not depict any efforts made by officers of investigating agency to bring on record as to in what manner accused Abul Kalam Azad @ Guddu was in exclusive possession or even possession of said premises at F33 Abul Fazal Enclave. It is own case of the prosecution that the said premises from where the alleged recovery of currency notes Ex P2/1 to 12 were effected belonged to the cousin brother of accused Abul Kalam Azad @ Guddu. Said cousin brother of accused Abul Kalam Azad @ Guddu has not been cited or examined as prosecution witness. In SC No. 53/2011 18/21 State Vs. Mohd. Farooq etc. what status or capacity the said cousin of accused Abul Kalam Azad @ Guddu was enjoying the possession of the said premises, has not been unearthed in the course of investigation nor proved on record, as to whether he was a licensee, lessee or an owner thereof.
21. I will not hesitate to invoke Section 73 of the Evidence Act in the facts of the case. SI Surender Rana (PW7) claimed that he prepared the site plan Exts PW7/A and PW7/B but their bare perusal makes it is visible and clear that the writing of site plan Exts PW7/A and PW7/B are entirely different. It brings on record the fact that the maker of these two documents i.e Exts PW7/A and PW7/B is not the one and same person. It also adds dimension to the shadow of doubt casted over the presented case of prosecution.
22. Ct Devi Dayal (PW3) testified of having taken one sealed parcel on 24/11/2004 vide road certificate no. 83/21/04 and having deposited on 27/11/04 at Nasik Press, Nasik, Maharashtra, whose acknowledgment he brought on record as Mark PX1. HC Rangrao (PW6), the Mal Khana Mohrar who brought the copies of SC No. 53/2011 19/21 State Vs. Mohd. Farooq etc. entries Ex PW6/A (colly) in register no. 19 testified that Ct Devi Dayal (PW3) took three parcels on 24/11/2004 for depositing them to Nasik Currency Notes Press in Nasik at Maharashtra. Also as per case of prosecution, the case properties recovered from the three accused persons were kept in three separate parcels, duly sealed with the seal of BS. Ex PW7/C, report dated 07/12/2004 of India Security Press, Currency Notes Press, Nasik inter alia revealed of 49 currency notes and 93 currency notes bearing no. 8GQ637277 so produced in the parcels. So, as per Ex PW7/C, the produced 142 currency (counterfeit) notes were in two parcels and not in three parcels in terms of presented case of prosecution, for which there is no explanation at all, borne out from the evidence on record. Per contra, the road certificate, copy Mark PX1 reveals of sending of three parcels and not two parcels.
23. Aforesaid discussion has made me reach to the conclusion that the testimonies of the material witnesses are suffering from material contradictions, severe infirmities and inherent improbabilities, which in the absence of corroboration from testimony SC No. 53/2011 20/21 State Vs. Mohd. Farooq etc. of any independent witness/shopkeeper makes the alleged recovery of counterfeit currency notes as well the apprehension and arrest of accused persons, as presented, doubtful and their existing every reasonable possibility of the false implication of the accused persons and planting of the counterfeit currency notes upon them. In my considered opinion the prosecution has failed to prove its case against the accused persons, beyond reasonable doubt for (1) accused being in conscious possession of said notes; (2) accused had knowledge of said notes being counterfeit notes and (3) accused intended to use the said notes as genuine. Accused are held not guilty and acquitted for the offences charged. Their bail bonds are cancelled and sureties are discharged. File be consigned to record room.
Announced in the open court (GURVINDER PAL SINGH)
on date 11/05/2012 ASJ (FTC)/SD/ NEW DELHI.
SC No. 53/2011 21/21