Delhi District Court
Cbi vs . Anup Kumar Srivastava Etc. Judgement ... on 26 August, 2016
CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016
IN THE COURT OF SPECIAL JUDGE03 (P. C. ACT) (CBI),
PATIALA HOUSE COURTS, NEW DELHI
CC No. 19/13
RC No. AC1/2012/A0001/CBI/AC1/ND
Central Bureau of Investigation
Versus
(1) Anup Kumar Srivastava
S/o Sh. V. S. Srivastava
R/o D2/137, Kaka Nagar,
New Delhi
(The proceedings against this accused were quashed by Hon'ble High
Court of Delhi vide order dated 21.11.2013 in CRL. M.C. 4360/2012 )
(2) Lallan Ojha
S/o Late Sh. Babu Nandan Ojha
R/o 21, Savita Vihar,
Near Anand Vihar, New Delhi92
(3) Hemant Gandhi
S/o Sh. Mool Shankar Gandhi
R/o H. No. 11, New Sainik Vihar,
Pitampura, New Delhi.
(He is declared Proclaimed Offender vide ordersheet dated 14.03.2016)
(4) Dilip Aggarwal
S/o Late Sh. Dwarka Prasad Aggarwal
R/o. BM160, Shalimar Bagh (West),
Delhi110088.
(5) Anand Aggarwal
S/o Late Sh. Mohan Lal Aggarwal,
CC No. 19/13 Page No. 1 of 140
CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016
R/o. 13/41, Punjabi Bagh (West),
New Delhi110026.
Date of filing of chargesheet : 29.02.2012
Date of conclusion of final arguments : 25.07.2016
Date of announcement of judgement : 26.08.2016
JUDGEMENT
1. This case was registered on the basis of source information on 02.01.2012 under section 120B IPC r/w 7,8,10,12 and 13 (2) r/w 13 (1) (d) of Prevention of Corruption Act ,1988.
2. As per prosecution, Hemant Gandhi (A3) resident of House No. 38, Ground Floor, Road No. 52, Punjabi Bagh West, New Delhi is having close contacts with Dr. Anup Kumar Srivastava (A1), Commissioner, Central Excise Delhi1 Commissionerate, Central Revenue Building, I P Estate, ITO, New Delhi R/o DII, 137, Kaka Nagar, New Delhi, Lallan Ojha (A2), Superintendent, Central Excise, Central Revenue Building, New Delhi R/o 21, Savita Vihar, Delhi and other officials of Central Excise Deptt., Delhi and Hemant Gandhi (A3) is acting as a middleman for these officials of Central Excise, Delhi for obtaining illegal gratification by corrupt and illegal means from the businessmen for the aforesaid public CC No. 19/13 Page No. 2 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 servants and delivering the same to these officials.
3. On 28.12.2011, a team of officials of Central Excise, DelhiI, led by Lallan Ojha (A2), Superintendent conducted an illegal raid at the godown/premises of Dilip Aggarwal (A
4) and Anand Aggarwal (A5) at 71/7, A4 First Floor Rama Road, Najafgarh Road Industrial Area, New Delhi 110015. Lallan Ojha (A2), in conspiracy with Dr. Anup Kumar Srivastava (A1), Hemant Gandhi (A3) and others negotiated with the owners of godown for an illegal gratification in lieu of not taking any action against them and finalised the bribe amount of Rs. 60 lacs to be paid by these private persons. This was telephonically conveyed by Lallan Ojha (A2) to Dr. Anup Kumar Srivastava (A1) through Hemant Gandhi (A3). It is further learnt that Hemant Gandhi (A3) was in regular touch with Dilip Aggarwal (A4) and Anand Aggarwal (A5) and received from them on 30.12.2011 a huge amount of money as part of the illegal gratification alongwith a cheque of Rs. 20 Lakhs issued by Anand Aggarwal (A5) as security for the remaining amount. Further, on request of Dilip Aggarwal (A4), Hemant Gandhi (A3) spoke to Lallan Ojha (A2) and Dr. Anup Kumar Srivastava (A1) for some concession in the amount of illegal gratification.
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4. As per prosecution, both the public servants asked Hemant Gandhi (A3) to meet them in their office located at ITO, New Delhi on 02.01.2012. Lallan Ojha (A2) also asked Hemant Gandhi (A3) to bring Rs. 3 lacs, as his part of share from the amount of illegal gratification obtained as above from Dilip Aggarwal (A4). It was reliably learnt that Hemant Gandhi (A3) would send Rs. 3 lakhs to be delivered to Lallan Ojha (A2) at his ITO office on 02/01/2012.
5. Dr. Anup Kumar Srivastava (A1) was posted as Commissioner, Central Excise DelhiI since March 2010. Hemant Gandhi (A3) is a Private person and as per intercepted conversations received from Special Unit, CBI, Delhi and as stated by PS to Commissioner, Central Excise, DelhiI, he was in regular contact with Dr. Anup Kumar Srivastava (A1) telephonically and also through personal meetings for the last 57 months and Hemant Gandhi (A3) got organized illegal Excise searches under the directions and protection of Dr Anup Kumar Srivastava (A1), through the subordinate officials of Dr. Anup Kumar Srivastava (A1) for collecting illegal gratification from the parties so raided. The same is also corroborated by their mobile phone CDRs.
6. As per prosecution, Lallan Ojha (A2), was transferred CC No. 19/13 Page No. 4 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 to Office of Commissioner, Central Excise DelhiI in Audit Branch in July 2010 and thereafter he was posted in Anti Evasion Branch in November 2010 as Supdt (Anti Evasion). As per intercepted telephonic conversation between Hemant Gandhi (A3) and Dr. Anup Kumar Srivastava (A1), he was chosen for an illegal raid to be conducted on 28.12.2011. The entire conversation shows that the search was conducted by A2 with the sole motive of obtaining illegal gratification for himself, Dr. Anup Kumar Srivastava (A1) and Hemant Gandhi (A3). These conversations also show that the owner of the premises Anand Aggarwal (A5) and his associate Dilip Aggrawal (A4) were pressurized to obtain illegal gratification and finally a settlement was reached for an illegal gratification of Rs 60 lacs.
7. Sh. Manoj Shukla, Ld. Senior Public Prosecutor submitted that Hemant Gandhi (A3) was acting as middleman of Dr. Anup Kumar Srivastava (A1) for collection of illegal gratification by scouting for his known businessmen who could be raided and illegal gratification extracted from them for himself and A1 Dr. Anup Kumar Srivastava. It has also been revealed that he the name of A2 Lallan Ojha was predecided by Dr. Anup Kumar Srivastava (A1) for the CC No. 19/13 Page No. 5 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 planned operation and accordingly, Lallan Ojha (A2) was deputed for carrying out the said illegal raid.
8. Ld. Senior Public Prosecutor has further submitted that Anand Aggarwal (A5) is the owner of the godown of the imported mobile phones located at 71/7, A4 First Floor Rama Road, Najafgarh Road Industrial Area, New Delhi 110015 Industrial Area and Dilip Aggarwal (A4) is a client and associate of Anand Aggarwal (A5) and is having good business relations with him. Dilip Aggarwal (A4) is a known person of Hemant Gandhi (A3) for the last ten years. Therefore, on receipt of the information about a raid on the godown of Anand Aggarwal (A5), not knowing that the said raid was got done by Hemant Gandhi (A3) himself, A5 contacted Hemant Gandhi (A3) for help. Hemant Gandhi (A
3) in turn communicated the vulnerability of Dilip Aggrawal (A4) and Anand Aggarwal (A5) to Lallan Ojha (A2), asking him to demand huge amount of illegal gratification. Hemant Gandhi (A3) also collected Rs 20 lacs in cash and a cheque of Rs 20 lacs from Anand Aggarwal (A5) directly for himself, Dr. Anup Kumar Srivastava (A1) and Lallan Ojha (A2).
9. Ld. Senior Public Prosecutor has further submitted that on 23.12.11, Hemant Gandhi (A3) contacted Dr. Anup CC No. 19/13 Page No. 6 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 Kumar Srivastava (A1) indicating to do "some work" and asked him to depute Lallan Ojha (A2) or somebody else as chosen by Dr. Anup Kumar Srivastava (A1) for the said work, however, Dr. Anup Kumar Srivastava (A1) was busy on that day and directed Hemant Gandhi (A3) to meet him the next day. On 27.12.2011, Hemant Gandhi (A3) sought permission of Dr. Anup Kumar Srivastava (A1) to meet him in his (i.e. Dr. Srivastava's) office and Dr. Anup Kumar Srivastava (A1) agreed to meet him. On that day, Dr. Anup Kumar Srivastava (A1) introduced Hemant Gandhi (A3) to Lallan Ojha (A2) and in the meeting between these three, Lallan Ojha (A2) was deputed for conducting an illegal raid at the premises of Anand Aggarwal's (A5) godown at Rama Road Industrial area, Near DHL Office, Delhi. The fraudulent nature of the search as well as the entire motive for collection of illegal gratification is established through the intercepted conversations of Hemant Gandhi (A3) with Lallan Ojha (A
2) and Dr. Anup Kumar Srivastava (A1). A3 Hemant Gandhi kept Dr. Anup Kumar Srivastava (A1) informed telephonically about the recoveries during the search, success of the mission (i.e. the illegal search) and the settlement for an illegal gratification of Rs 60 lacs in a cryptic language by saying "Mission successful" and "Six zero". These inputs were CC No. 19/13 Page No. 7 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 acknowledged by Dr. Anup Kumar Srivastava (A1) by saying "OK". The conversations held between Hemant Gandhi (A3) and by Lallan Ojha (A2) and those between Hemant Gandhi (A3) and Dr. Anup Kumar Srivastava (A1) when read in totality unambiguously establish the motive as well as modus operandi of these three persons for receiving illegal gratification from Anand Aggarwal (A5) and Dilip Aggrawal (A4).
10. Ld. Senior Public Prosecutor has further submitted that 96 incriminating conversations, for the period 23.12.2011 to 02.01.2012, were received during investigation from Special Unit (SU) CBI, New Delhi. It is submitted that legal technical surveillance was being conducted by SU of telephone/mobile calls of the mobile number 9818517000 and landline no 011 25225641 of Hemant Gandhi (A3), mobile no 9560806997 of Dilip Aggarwal (A4) and mobile numbers 8130000444 and 9811602221 of Lallan Ojha (A2). These conversations show that an amount of Rs. 60 lacs was settled as an illegal gratification to be received from Anand Aggarwal (A5). Accordingly, Anand Aggarwal (A5) paid Rs 20 lacs in cash as per instruction of Lallan Ojha (A2) to SK Singh, Supdt. Central Excise, DelhiI and the remaining amount of Rs 20 CC No. 19/13 Page No. 8 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 lacs and a selfcheque of Rs. 20 lacs as security for the balance amount, to Hemant Gandhi (A3). These conversations also revealed that Hemant Gandhi (A3) was the middleman acting on behalf of Dr. Anup Kumar Srivastava (A1).
11. Ld. Senior Public Prosecutor has further submitted that on 23.12.2011 (Call No.1) Hemant Gandhi (A3) contacted Dr. Anup Kumar Srivastava (A1) and asked to introduce Lallan Ojha (A2) as chosen by Dr. Anup Kumar Srivastava (A
1) for doing some work on next day. Since Dr. Anup Kumar Srivastava (A1) was busy, therefore, he intimated to Hemant Gandhi (A3) to see him next day. As per call no.2 dated 27.12.2011, Hemant Gandhi (A3) confirmed from Dr. Anup Kumar Srivastava (A1) about his availability in the Office and desired to meet in the office. A3 was asked by Dr. Anup Kumar Srivastava (A1) to come to his office. During this meeting, Lallan Ojha (A2) was also called and deputed for conducting the illegal raid. As per call no.3 dated 27.12.2011, after the meeting with Dr. Anup Kumar Srivastava (A1) and Lallan Ojha (A2), Hemant Gandhi (A3) contacted his source namely one Ashok Aggarwal to provide the address of the party, which was to be raided, which as the later calls CC No. 19/13 Page No. 9 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 revealed, would establish that Ashok Aggarwal has given the information about the premises of Anand Aggarwal (A5) located Rama Road Industrial Area, New Delhi owing to some personal enmity.
12. As per prosecution, in pursuance of aforesaid criminal conspiracy, Hemant Gandhi (A3) showed the business premises of Anand Aggarwal (A5) located at Rama Road Industrial Area, New Delhi to Lallan Ojha (A2) in the evening of 27.12.2011 ( as per call No. 4 and 6).
13. Ld. Senior Public Prosecutor has further submitted that Call Nos.12, 13, 14, 15 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 38, 39, 40, 41, 42, 43, 44, 45 dated 28/12/2011 from 07:20:25 to 13:09:39 prove that on 28.12.2011, in furtherance of aforesaid conspiracy, Lallan Ojha (A2), took along with him S.K. Singh Supdt., K.N. Srivastava Inspector and Sunil Kumar, Inspector of Central Excise, Delhi and illegally raided the abovementioned business premises of Anand Aggarwal (A
5). Being an illegal raid, no documentation was done during or after the raid. Further, in lieu of not taking any legal action for the goods discovered in the business premises, Lallan Ojha (A2), negotiated for an illegal gratification of Rs. 60 Lakhs CC No. 19/13 Page No. 10 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 with Anand Aggarwal (A5). In between, Lallan Ojha (A2) informed each and every development to Hemant Gandhi (A
3) and Hemant Gandhi (A3) further communicated the same developments to Dr. Anup Kumar Srivastava (A1) such as availability of the stock to the tune of Rs. 3 ½ to 4 crores and success of the illegal raid and the settlement of negotiation for an illegal gratification of Rs. 60 lakhs.
14. Ld. Senior Public Prosecutor has further submitted that as per call no. 46 on 28.12.2011, at in furtherance of aforesaid conspiracy, furtherance of the aforesaid conspiracy, Lallan Ojha (A2) informed Hemant Gandhi (A3) to convey the message to the Commissioner Dr. Anup Kumar Srivastava (A1) in brief about the success of the illegal raid by communicating, "Mission successful". Lallan Ojha (A2) asked Hemant Gandhi (A3) to be cautious in communicating the message, as telephones may be under surveillance. On this Hemant Gandhi (A3) assured Lallan Ojha (A2) not to worry as he has spoken to Dr. Anup Kumar Srivastava (A1) in the morning also and they [i.e. Hemant Gandhi (A3) and Dr Srivastava A1)] are used to talking in code words only. It is also told by Lallan Ojha (A2) to Hemant Gandhi (A3) that it may be conveyed that he will come at about 2.303.00 PM CC No. 19/13 Page No. 11 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 and will then give a further detail. As per call no 47 dated 28/12/2011 at 13:26:01 hrs., Hemant Gandhi (A3) tried to contact Dr. Anup Kumar Srivastava (A1) but the PS to Dr Srivastava (A1) informed that the Commissioner had gone in the meeting and as and when he comes back, she will call back. This call immediately follows the directions of Lallan Ojha (A2), and thus clearly establishes the involvement of Dr. Anup Kumar Srivastava (A1) in the criminal conspiracy to conduct an illegal search for obtaining illegal gratification.
15. Ld. Senior Public Prosecutor has further submitted that as per Call No. 48 dated 28/12.2011 at 13:33:08 hrs., Hemant Gandhi (A3) informed Mahender Kapoor, one Supdt, Central Excise, about the success of the "Misson" and discussed that the matter is settled for Rs 60 lakhs, which the Party will pay tomorrow. He asks Mahender Kapoor not to disclose this figure, as he has not informed even "Muchhad" [i.e. Anup Kumar Srivastava (A1)]. Mahender Kapoor already knew through Lallan Ojha (A2) about the said fraudulent raid and the involvement of Dr. Anup Kumar Srivastava (A1). He has also given statement u/s 164 Cr. PC to establish the facts in his knowledge about the said incidence and also about having received Rs 7.50 Lakhs from CC No. 19/13 Page No. 12 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 Hemant Gandhi (A3) on 30.12.2011, which Hemant Gandhi (A3) owed him.
16. Ld. Senior Public Prosecutor has further submitted that as per Call No. 51 dated 28/12/2011 at 16:12:06 hrs., Dr. Anup Kumar Srivastava (A1) called Hemant Gandhi (A3) through his PS, as he was busy in a meeting when Hemant Gandhi (A3) had tried to contact him earlier. As per this conversation, it is informed by Hemant Gandhi (A3) that, "mission successful", settlement for "six zero" (Rs Sixty Lakhs), as per the direction of Lallan Ojha (A2) vide call No
46.
17. Ld. Senior Public Prosecutor has further submitted that Hemant Gandhi (A3) informed one Amit that Dilip Aggrwal was the person whose premises got raided and Dilip Aggarwal (A4) has been following the party since morning. Hemant Gandhi (A3) also informed that he is in direct contact with the Excise officer and that the deal has been finalized and that the payment will made tomorrow. He also informed that it was the team of the "Mucchad" [i.e. Dr A.K. Srivastava(A1)]. The above discussion is in call no 52, dated 28/12/2011 at 17:53:09 hrs. As per call no. 54, Hemant Gandhi (A3) discussed with Ashok Aggarwal in the evening CC No. 19/13 Page No. 13 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 on 28/12/2011 that they should not reveal that the illegal raid was got done by them as it will hurt their market reputation. It is specifically asked by Ashok Aggarwal whether the party of Central Excise Deptt. was deputed by Dr Srivastava on which, Hemant Gandhi (A3) confirmed that it was indeed a party of Dr. Anup Kumar Srivastava (A1).
18. As per prosecution, Call No. 55 dated 29/12/2011 at 13:19:50 hrs. reflects that it is informed by Hemant Gandhi (A3) to Lallan Ojha (A2) that he is in the office of Central Excise and requests Lallan Ojha (A2) to meet him outside the main gate where he was waiting. As per Call No.56 dated 30/12/2011 at 08:54:31 hrs., Lallan Ojha (A2) informed Hemant Gandhi (A3) from his mobile no. 8130000444 stating that it was his new no. and it has not been shared with anyone else. On 28.12.2011 also, Lallan Ojha had used the mobile of K N Srivastava, one of the Inspectors in the raiding team, and not his own mobile. As per this call, it is discussed that there was a 99% chance that Anand Aggarwal (A5) will deliver the money today itself and if there is any delay then directions will be given to Hemant Gandhi (A3) to remain in his contact. This again shows a conspiracy between them. As per Call No.57 dated 30/12/2011 at 10:17:37 hrs., CC No. 19/13 Page No. 14 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 there is a discussion between Lallan Ojha (A2) and Hemant Gandhi (A3) in a coded language that the bribe amount was decided to the tune of Rs 60 lacs but today he has delivered only Rs 20 lacs.
19. Ld. Senior Public Prosecutor has further submitted that as per direction of Lallan Ojha (A2), S.K. Singh, Supdt., Central Excise collected Rs. 20 lakhs from Anand Aggarwal (A5) at NOIDA. Further, as per directions of Lallan Ojha (A
2), S.K. Singh contacted Hemant Gandhi (A3) and delivered to him the said amount of Rs. 20 lakhs. S.K. Singh has also given statement U/s. 164 Cr.P.C. in which he has stated the above facts.
20. Ld. Senior Public Prosecutor has further submitted that in the evening of 30.12.2011, Hemant Gandhi (A3) collected a cash of Rs. 20 Lakhs as 2 nd Installment and a selfcheque issued by Anand Aggarwal (A5) of Rs. 20 Lakhs as security for balance amount of Rs. 20 lakhs. The details of discussion about collection of cheque and the way the amount of Rs. 20 lakhs collected from Anand Aggarwal (A5) and Dilip Aggarwal (A4) are available in call No. 60, 62, 63, 64, 69, 70, 72, 75, 76, 77, 78, 79 all dated 30.12.2011. As per these calls, Dilip Aggarwal (A4) has acted as a mediator on behalf CC No. 19/13 Page No. 15 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 of Anand Aggarwal (A5). Further, A4 and A5 requested Hemant Gandhi (A3) for some concession in the amount of illegal gratification, on which Hemant Gandhi (A3) agreed to talk to Dr. Anup Kumar Srivastava (A1).
21. Ld. Senior Public Prosecutor has further submitted that as per Call No.67 dated 30/12/2011 at 17:28:57 hrs., Hemant Gandhi (A3) tried to contact Dr. Anup Kumar Srivastava (A1) on the office landline number of the Commissioner but the PS to Commissioner told that he has reportedly gone for some meeting. As per Call No.68 dated 30/12/2011 at 17:31:31 hrs., Hemant Gandhi (A3) informed Dr. Anup Kumar Srivastava (A1), that the Party is sitting with him in another room and requested for some concession to the party. Reacting positively, Dr. Anup Kumar Srivastava (A
1) replied that this can be discussed in the office on Monday, as he was out of station.
22. As per prosecution, Lallan Ojha (A2) asked Hemant Gandhi (A3) to deliver his share of Rs. 3 lakhs out of the ill gotten money. On this, Hemant Gandhi (A3) promised to deliver the same on 31.12.2011 but due to his prior engagement, Hemant Gandhi (A3) promised to deliver the same the next day. There is also discussion between two CC No. 19/13 Page No. 16 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 about the settled illegal gratification of Rs. 60 lakhs and request of the Party for some concession. The above discussions are in call No. 80, 81, 82, 83 and 84.
23. Ld. Senior Public Prosecutor has further submitted that on 02.01.2012 Hemant Gandhi (A3) delivered Rs. 3 lakhs through his driver Sh. Rajesh Verma. Further, Rajesh Verma contacted Lallan Ojha (A2) after reaching outside the CR Building but Lallan Ojha (A2) deputed his driver Dilip Kumar Yadav for collection of the same from Rajesh Verma. Finally, the amount of Rs. 3 lakhs was collected by Dilip Kumar Yadav at the instance of Lallan Ojha (A2) and he kept the same in boot of the car. The above discussions are in call Nos. 88 to
96. Dilip Kumar Yadav and Sh. Rajesh Verma have also given statements U/s. 164 Cr.P.C. about delivery/collection of Rs. 3 lakhs.
24. Ld. Senior Public Prosecutor has further submitted that after registration of the case, a trap was laid at the backside parking of C.R. Buildings, where an amount of Rs. three lakhs had been kept by Dilip Kumar Yadav, driver of Lallan Ojha (A
2) in vehicle No. DL 4C AD 4421 AVEO CHEVROLET (Black colour). In the presence of two independent witnesses, an amount of Rs. 2,96,500/ was recovered by CBI from the boot CC No. 19/13 Page No. 17 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 of the car No. DL 4C AD 4421 AVEO CHEVROLET (Black colour) of Lallan Ojha (A2). The car is registered in the name of Smt Shashi Ojha W/o Lallan Ojha (A2).
25. Investigation revealed that voices available in the 96 recovered conversations are of Hemant Gandhi (A3), Lallan Ojha (A2), Dr. Anup Kumar Srivastava (A1), A5 Anand Aggrwal and A4 Dilip Aggrwal including other prosecution witnesses such as S.K. Singh, Supdt., Mahender Kapoor, Supdt., Dilip Kumar Yadav (driver of Lallan Ojha), Rajesh Verma (driver of Hemant Gandhi). The voices have been identified by the independent witnesses during the investigation. The voice of Dr. Anup Kumar Srivastava (A1) has been identified by Smt. Rekha Rani, PS to Commissioner, Pradeep Kumar, Addl. Commissioner and B. Mohan, Dy. Commissioner. The voice of Lallan Ojha (A2) has been identified by B. Mohan, Dy. Commissioner and S.K. Singh, Supdt. The voice of Hemant Gandhi (A3) has been identified by Mahender Kapoor, Supdt.
26. During investigation, the voice samples of Lallan Ojha (A2), Hemant Gandhi (A3), Anand Aggarwal (A5) and Dilip Aggarwal (A4), wife of Hemant Gandhi (A3), Dilip Kumar Yadav (driver), Rajesh Verma (driver) and Dr. Anup CC No. 19/13 Page No. 18 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 Kumar Srivastava (A1) had been taken in front of independent witness and forwarded to Central Forensic Science Laboratory for expert opinion on the questioned voices recorded by Special Unit, CBI, New Delhi. A positive opinion has been received regarding all samples. During investigation, all the mobile numbers figuring in the intercepted communications have been conclusively linked to the speaker of the relevant content, either directly as a subscriber, or as a user.
27. Ld. Senior Public Prosecutor has further submitted that investigation revealed that out of the aforesaid illegal gratification amount of Rs. 20 lakhs, an amount of Rs. 7.50 lakhs was given to Mahender Kapoor by Hemant Gandhi as repayment of his outstanding loan and subsequently an amount of Rs.6 lakhs was recovered during investigation at the instance of Mahender Kapoor. The said fact is also covered by Mahender Kapoor in his statement recorded u/s 164 Cr.P.C. It is also established that an amount of Rs.3 lakhs was sent by Hemant Gandhi (A3) to Lallan Ojha (A2) as a part of his share out of Rs. 20 lakhs collected directly by Hemant Gandhi (A3). The said fact has been proved by recovery of Rs. 2,96,500/ from the vehicle of Lallan Ojha (A CC No. 19/13 Page No. 19 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016
2) on 02.01.2012 in the presence of independent witnesses. The shortfall is due to lesser number of currency notes in some bundles. There is also evidence of Rajesh Verma, driver of Hemant Gandhi (A3) and Dilip Yadav, driver of Lallan Ojha (A2) that Rajesh handed over Rs. 3 lakhs in a polythene bag to Dilip Kumar Yadav. The said facts also established by both the drivers in the statement given u/s 164 Cr.P.C. Of the remaining amount out of Rs. 20 lakhs [207.5 (refer above) 3.0= Rs. 9.5 lakhs], Rs. 8.6 lakhs was recovered from possession of Hemant Gandhi (A3) and Rs. 1 lakh was claimed to have been spent on New Year party. Apart from above, a selfcheque of Rs. 20 lakhs issued by Anand Aggarwal (A5) was also recovered from the possession of Hemant Gandhi (A3).
28. Ld. Senior Public Prosecutor has further submitted that the fraudulent raid was carried out by Lallan Ojha (A2) in criminal conspiracy with Hemant Gandhi (A3) and Dr. Anup Kumar Srivastava (A1), which is established by the other team members of the raiding party consisting of S.K. Singh, Supdt., Central Excise, Sunil Kumar, Inspector, Central Excise and K.N. Srivastava, Inspector Central Excise that Lallan Ojha (A2) has conveyed to them that the said raid was carried out CC No. 19/13 Page No. 20 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 as per instruction of Dr. Anup Kumar Srivastava (A1). All these three team members have given statement UI/s. 164 Cr.P.C. in this regard.
CHARGE
29. In view of the aforesaid allegations, a charge under Section 120B IPC r/w 7, 12 & 13 (2) r/w 13(1)(d) of Prevention of Corruption Act 1988 was framed against all the accused persons.
30. A separate charge under Section 7, 12 & 13(2) r/w Sec. 13(1)(d) of Prevention of Corruption Act 1988 was framed against accused Anup Kumar Srivastava (A1).
31. A separate charge under Section 7, 13(2) r/w Sec. 13(1)(d) of Prevention of Corruption Act 1988 was framed against accused Lallan Ojha (A2).
32. A separate charge under Section 12 r/w Section 7 of Prevention of Corruption Act 1988 was framed against accused Hemant Gandhi (A3).
33. A separate charge under Section 12 r/w Section 7 of Prevention of Corruption Act 1988 was framed against accused Anand Aggarwal (A5) and Dilip Aggarwal (A4).
CC No. 19/13 Page No. 21 of 140CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 PROSECUTION EVIDENCE
34. The witnesses examined by prosecution are enlisted as under :
S. PWs Name of Witnesses Paging
No.
1. PW1 Rajesh Verma S/o Sh. Badri Prasad 95227
2. PW2 Dilip Kumar Yadav S/o Sh. Krishan Kumar Yadav 229357
3. PW3 Pawan Singh, Nodal Officer, Idea Celluar 359375
4. PW4 Anuj Bhatia, Nodal Officer, Vodafone Ltd. 377399
5. PW5 Akhtarul Haneef, Director(Vig), NDMC 401421
6. PW6 Rekha Rani W/o Chander Prakash 423487
7. PW7 Mahesh Kumar S/o Sh. Om Prakash 489529
8. PW8 Dr. John Joseph, The then Commissioner, 531551
Custom & Central Excise, Delhi01
9. PW9 Pradeep Kumar, Commissioner, Central Excise 553575
Building, Tikrapara, Raipur, Chattisgarh
10. PW10 Virendra Kumar, Hawaldar, Central Excise, 577587 Nehru Place, New Delhi
11. PW11 B. Mohan, Dy. Commissioner, Central Excise, 589617 Large Tax Unit (LTU), Delhi
12. PW12 S. K. Singh, Superintendent, Service Tax Head 619659 Quarters, Near WHO Building, New Delhi
13. PW13 A. D. Tiwari, SSO, GradeI, CFSL 661697
14. PW14 Sunil Verma, LDC, Dept of Central Zone, MCD, 699731 Lajpat Nagar, New Delhi
15. PW15 M. C. Kashyup, Dy. SP, CBI, Spl. Unit, ND 733763
16. PW16 Dr. Rajirder Singh, Director, CFSL, New Delhi 765789
17. PW17 Tarun Khurana, Ex. Nodal Officer, Bharti Airtel 791803 Ltd.
18. PW18 Punit Mehta S/o Sh. Shyam Sundar Mehta 805823 CC No. 19/13 Page No. 22 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016
19. PW19 Ms. Surbhi Sharma Vats, Ld. MM, PHC, NDD 825833
20. PW20 Vinod Kumar Sharma, Clerk, O/o Commercial 835839 Record Section/Branch, MTNL
21. PW21 Sunil Kumar, Superintendent, Central Excise, 841855 Ambala Division, Panchkula, Commissionerate, Haryana, Delhi Zone
22. PW22 Mahendra Kapoor S/o Lt. Sh. K. L. Kapoor 857885
23. PW23 R. C. Kataria, Retd. DGM, MTNL 887891
24. PW24 Ms. Meenakshi Sahney D/o Sh. K. K. Aneja 893895
25. PW25 Vishwadeep Bhist, S/o Sh. Gajpaal Bisht 897
26. PW26 Gurwinder Singh, Commercial Officer, Eastern 899901 Court, MTNL, Janpat, New Delhi
27. PW27 Prem Lal Kukreti S/o Lt. Sh. Bishumber Dutt 903927
28. PW28 Sh. Sudesh Kumar, Ld. MM, PHC 929935
29. PW29 K. N. Srivastava S/o Sh. S. B. L. Srivastava 937949
30. PW30 J. P. Singh S/o Lt. Sh. Ganga Prasad 951961
31. PW31 K. Ramesh, Section Officer, Pawan Hans 963969 Helicopter
32. PW32 Arvind Bansal, LD. MM., PHC, NDD 971975
33. PW33 Saurabh Gandhi S/o Vijay Ghandi 977979
34. PW34 P. K. Gottam, SSOI, CFSL, CBI 981991
35. PW35 N. P. Mishra, DSP, CBI, SCIII 993999
36. PW36 Inderpal S/o Sh. Bheem Raj 1001
37. PW37 Ram Singh, Dy. SP, CBI, ACB 10031051
35. I would like to discuss the testimonies of the aforesaid witnesses at appropriate places.
Statements under Section 313 Cr.PC
36. All the accused persons denied all the allegations CC No. 19/13 Page No. 23 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 put to them.
Defence Evidence of Lallan Ojha (A2)
37. A2 examined following witnesses in defence :
1. A2/ DW1 Smt. Shashi Ojha, who testified as under :
"I am a Director in SJIT Services Pvt. Ltd. The said firm is engaged in manufacturing of plastic cutlery and cloth hanger. We are manufacturing cutlery for domino pizza and hanger for Wardrobe. Both my sons are also Director and they help me.
On 2nd January 2012, my husband Lallan Ojha left the house at 7:30 AM and I was to accompany my niece and her husband to AIIMS for treatment of their son. My niece had given me Rs.50,000/ to be deposited in AIIMS. I had kept that money in a white envelope and kept in a shopping bag colour white & red. I had kept Rs.3,00,000/ in the same bag. The cash was kept to make the payment to the workers and to buy raw material for the factory and some money was to be deposited in AIIMS, out of the cash. The cash was of company and it is reflected in the account book of the company as cash in hand on that day. Out of that money, I paid 3,500/ to my nephew to be spent in the factory as he was leaving for factory at 8:00 AM. I kept this entire money in the above mentioned shopping bag in the dickey of my car no. DL 4C4421. My niece had taken sometime to be get ready as I was taken to AIIMS, when I came down and when I reached down, I found our driver Dilip had left the house with the lunch of Mr. Ojha and he was also to pick up Mr. Ojha to AIIMS. I kept waiting till 12:00/12:30 am and tried to call Dilip and my husband. I had also dialed the number of office but I could not contact my husband and the driver. Thereafter I received the call of my son stating that why I have not reached in the factory with cash. I told him to come back home as the car had not come back from CC No. 19/13 Page No. 24 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 the office and driver and my husband had not contacted me. CBI came to search our house but they did not disclose anything to me. At about 07:55 p.m., my elder son received a message that my husband had been arrested by CBI. I immediately checked the reason of his arrest and I was informed that some money had been recovered from the car and I informed the officers that the money was kept by me in the car. The total amount kept by me in the car was Rs.3,46,500/. The CBI officers present in my house, did not record my statement and when I wanted to leave my house to the CBI office, I was not permitted to leave my house and I was informed that in case I made any issue out of it, me and my son would be arrested. After 2 - 3 days, I met CBI officer Ram Singh, IO of this case and informed him about this money on which he told me if I made an issue out of it, me and my son would be arrested."
2. A2/DW2 Ajay Kumar Sahu, Inspector Vigilance, Central Excise, Delhi1, who testified as under :
"I have brought the summoned record pertaining to the complaint against Dr. A. K. Srivastava; the copy of the letter to CVC dated 16.12.2011; copy of the letter dated 07.09.2011 from the office of Commissioner to Additional Director General; copy of letter dated 23.12.2010 by Anup Kumar Srivastava to Sh. Ram Jethmalani, Advocate, President, Supreme Court Bar Association; copy of letter dated 22.11.2011 from the Commissioner of Central ExciseI, by Additional Commissioner to Additional Commissioner (Vigilance), DGOV. The same are collectively Ex.DW2/A (Colly.) (A2) (18 pages). Copies of the same are placed on record and OS&R."
Defence Evidence of Dilip Aggarwal (A4) He examined Man Mohan Goel (A4/DW1), a Chartered Accountant, who proved the Income Tax Returns of CC No. 19/13 Page No. 25 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 five years i.e. 20112012 to 20152016 filed by accused Dilip Aggarwal through him.
Defence Evidence of Anand Aggarwal (A5)
38. A5 examined Sushil Kumar (A5/DW1), who testified as under :
"I am 12th passed and I am working as an Accountant with accused Anand Aggarwal (A5) for last about 8 years. As an Accountant, I see accounts of his business. I look after the Income Tax return of Anand Aggarwal (A5) and get it audited from Chartered Accountant. I have brought the copies of the income tax returns filed by New Sky International, which is under the sole proprietorship of Anand Aggarwal (A5). These returns are from the assessment year 20102011 to the assessment year 2014 2015 I.e of five years, which are collectively exhibited as Ex.A5/DW1A (colly). I identify the signature of Anand Aggarwal (A5) on these returns.
Sh. Anand Aggawal (A5) carries on the business of mobile trading and sanitary goods through the aforesaid proprietorship concern.
XXXXX by Sh. S. C. Sharma, Ld. Sr. P. P. for CBI.
The office of M/s New Sky International is situated on 63B, Second Floor, Rama Road, Kirti Nagar since 2008. I do not know the place where the godown of M/s New Sky International is situated. I do not know if the godown of M/s New Sky International is located at 71/7, A4, First Floor, Rama Road, Najafgarh Road, Industrial Area, New Delhi. I have no idea about the distance of 63B, Second Floor, Rama Road, Kirti Nagar and 71/7, A4, First Floor, Rama Road, Najafgarh Road, Industrial Area, New Delhi as I am sitting only on 63B. I do not know about the raid conducted by the officials of Central Excise, Delhi on 28.12.2011 at the godown/premises i.e. 71/7, A4, First Floor, Rama Road, CC No. 19/13 Page No. 26 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 Najafgarh Road, Industrial Area, New Delhi.
It is correct that as per the return for the assessment year 20122013 the gross turn over of M/s New Sky International is Rs.2,77,20,416/.
It is incorrect to suggest that I am deposing falsely/showing ignorance in respect of raid conducted by Central Excise on 28.12.2011 to save my employer accused Anand Aggarwal.
I know Dilip Aggarwal as I have seen him 2 to 4 times in the office of M/s New Sky International. He used to visits the aforesaid office in respect of the trading of mobile phones.
XXXXX by Lalan Ojha (A2).
Nil. Opportunity given.
XXXXX by Sh. Satya Prakash, adv. for Dilip Aggarwal (A4).
Question: I put it to you that there is no business relationship between Dilip Aggarwal and Anand Aggarwal. What you have to say?
(question is strongly opposed by Ld. Senior Public Prosecutor on the ground that the counsel who had examined the witness in chief on behalf of A5 is asking a leading question on behalf of A4 and thereby prejudicing the prosecution. I have considered this submission and although I find substance in the arguments of Ld. Se. Public Prosecutor, I am of the opinion that the right of an accused to cross examine a witness produced by a co accused should not be curtailed. However, I am further of the opinion that propriety demanded that A4 should have engaged a separate lawyer and should have sought permission to cross examine the witness prior to the cross examination by Ld. Senior Public Prosecutor. Nonetheless, I permit Ld. Counsel for A4 to cross examine the witness.) Answer: It is correct."
Mobile phones, its users/ owners
39. Prosecution has placed reliance on the call details CC No. 19/13 Page No. 27 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 as well as the intercepted calls. In order to understand as to who is the owner/ user of the mobile phones in question and the relevant CDRs of the said phones and the Customer Application Form (CAF), I have culled the testimonies of the prosecution witnesses and I am putting the same in tabular form as under :
Sl. Phone Document/
Name of Subscriber Proved by PW
No. number Exhibit
1. 8750017000 Hemant Gandhi PW3 Pawan D66 [PW3/B
Singh, (CAP) (CDR
Nodal Officer, PW3/E & F)]
Idea Cellular
2. 9811697334 Inder PW4 Anuj D54 [(PW4/B
Bhatia (CAF
Nodal Officer D61 PW4/J &
Vodafone KCDR, CDR
with 65B
certificate
3. 9999919999 Joginder Khurana PW4 Anuj D55 [PW4/C
Bhatia CAF
Nodal Officer D61 PW4/J & K
Vodafone CDR
4. 9899016666 Hemant Gandhi PW4 Anuj D56 [PW4D -
Bhatia CAF
Nodal Officer D61 CDR with
Vodafone 65B certificate
5. 9582000505 Nitin Gandhi PW4 Anuj D57 [PW4/E
Bhatia (CAF)
Nodal Officer D61 - PW4/J &
Vodafone K - CDR
6. 9953248659 Swatantra Paul PW4 Anuj D058 [PW4/F -
called from used by Lallan Ojha Bhatia (CDF]
spot made by (in Cell No.4, 6, Nodal Officer
this phone Vodafone
CC No. 19/13 Page No. 28 of 140
CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016
Sl. Phone Document/
Name of Subscriber Proved by PW
No. number Exhibit
7. 9811602221 Ms Sashi Jha PW4 Anuj D59[PW4/G -
(D25 used by Lallan Ljha Bhatia CAF
PW15/F) (proved by A/M - D Nodal Officer D61 CDR with
3/Ex.PW37/B by Vodafone 65B certificate
which seized from
his possession at the
time of arrest)
8. 9899426957 Dr. A. K. Srivatava PW4 Anuj D60[PW4/H -
Bhatia CAF
Nodal Officer D61 CDR with
Vodafone 65B certificate
9. 9899623528 Ram Sanei PW4 Anuj D64[PW4/M1
Bhatia - CAF]
Nodal Officer PW4/R -
Vodafone original CAF
{PW4/N & P -
CDR]
10. 9818517000 Hemant Gandhi PW17 Tarun D41
on used by Hemant Khurana [Ex.PW17/B
surveillance Gandhi (proved by Nodal Officer CAF]
(D21 arrest memo Bharti Airtel
PW15/B Ex.PW27/A
11. 8130000444 Lallan Ojha PW17 Tarun D42
On used by Lallan Ojha Khurana [Ex.PW17/C -
surveillance (proved by arrest Nodal Officer CAF]
(D24 memo D3/PW37/B) Bharti Airtel
PW15/e)
12. 9650192981 Usha Rani PW17 Tarun D43
Khurana [Ex.PW17/D -
Nodal Officer CAF]
Bharti Airtel
13. 9910973878 Jitedner Kumar PW17 Tarun D44 [PW17/E -
Khurana CAF]
Nodal Officer
Bharti Airtel
14. 9650111775 Punit Mehta PW17 Tarun D45
CC No. 19/13 Page No. 29 of 140
CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016
Sl. Phone Document/
Name of Subscriber Proved by PW
No. number Exhibit
Khurana [Ex.PW17/F -
Nodal Officer CAF]
Bharti Airtel D49 [Ex.PW17J
- CDR]
15. 9810406660 Saurabh Gandhi PW17 Tarun D46 [PW17/G
used by Mahender Khurana - CAF]
Kapoor (proved by Nodal Officer D50 PW17/K -
PW33 Saurabh Bharti Airtel CDR
Gandhi)
16. 9560806997 Used by Dilip PW17 Tarun D52 PW17/M &
on Aggarwal (seized Khurana N - CDR
surveillance from him vide Nodal Officer
(D033 seizure memo D Bharti Airtel
PW15/D) 8/PW37/D)
17. 25223000 Hemant Gandhi PW20 Vinod D37 PW20/B -
(himself admitted in Kumar CAF
transcript call no.11. PW23 R. C. D36 PW23/B -
Also proved by the Kataria - MTNL CDR
CAF Rajouri Garden
18. 25227000 Hemant Gandhi PW20 Vinod D38 PW20/C
(himself admitted in Kumar D36 PW23/C -
transit call no.11. PW23 R. C. CDR
Also proved by the Kataria
CAF
19. 25225641 Used by Hemant PW20 Vinod D39, PW20/D
on Gandhi Kumar
surveillance His self landline
(D22 number proved by
PW15/C) CAF D39.
20. 23378637 Used by Dr. A. K. PW26 Gurvinder D62
Srivastava Singh, MTNL, [Ex.PW26/B]
in the name of Janpath
collector central
excise (proved by
PW6 Rekha Rani, his
PA)
21. 8800338184 Used by Anand
CC No. 19/13 Page No. 30 of 140
CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016
Sl. Phone Document/
Name of Subscriber Proved by PW
No. number Exhibit
Aggarwal seized
from him vide
seizure memo D
7/Ex.PW37/C.
22. 9910973978 Used by Rajesh
Verma (PW1)
(seized vide seizure
memo D10) PW1
Rajesh Verma
(admitted)
23. 9899623528 Used by Dilip
Kumar Yadav
(Driver) (PW2)
proved by Dilip Kr.
Yadav PW2 himself
(seized from PW2
himself vide seizure
memo D32)
Relevant phone numbers by which calls were made
1. Dilip Aggarwal (A4) - 9560806997 (Sl. No. 16 above)
2. Lallan Ojha (A2) - 9953248659, 9811602221, 8130000444 (Sl. No. 6, 7 & 11 above)
3. Hemant Gandhi (A3) - 9818517000, 25225641 (Sl. No. 10 & 19 above)
4. Anand Aggarwal (A5) - 8800338184 (Sl. No. 21 above)
5. Mahender Kapoor (PW22) 9810406660 (Sl.No. 15 CC No. 19/13 Page No. 31 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 above)
6. Ashok Aggarwal (proved by PW36) 9811420824 (Sl. No.2)
7. Dilip Kumar Yadav (PW2) - 9899623528
8. Rajesh Verma (PW1) - 9910973978 I may point out that nothing has been brought out on record by the defence to disprove the aforesaid particulars.
Whether prosecution has been able to rule out the possibility of tampering the electronic evidence i.e. intercepted calls
40. Prosecution has examined PW15 namely M. C. Kashyap, DSP, CBI, who intercepted the calls. Since Ld. Defence counsels have led frontal attack upon the procedure adopted by PW15 in intercepting the calls, segregating them and preparing a copy of the same and have argued that due to human intervention the possibility of tampering the electronic calls has not been ruled out beyond reasonable doubt. Sh. Rakesh Kumar Sharma, Advocate for A4 and A5, has submitted that M. C. Kashyap should have issued three certificates under Section 65B of Indian Evidence Act, on each stage of intercepting the calls, segregating the calls and giving copy of the segregated calls. This court is aware that CC No. 19/13 Page No. 32 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 interception of telephonic calls is a very serious issue because it not only infringes the right of privacy of individuals but also due to its being electronic evidence, it is very easy to manipulate the same. Before discussing the aforesaid arguments and in view of the seriousness of the questions involved, I would like to reproduce the entire evidence of PW 15 Sh. M. C. Kashyap, DSP, CBI as under :
"I was posted in Special Unit in 1997 and till 6.2.2014 I remained posted there. In Special unit, we collect intelligence and for that purpose, we do telephonic interceptions. In December 2011, certain telephones being used by Sh. Lalan Ohja, A2, Sh. Hemant Gandhi, A3, Sh. Dilip Aggarwal, A 4 , were intercepted. In January 2012, it was learnt that a case was registered against Sh. Lalan Ohja, A2, Sh. Hemant Gandhi, A3, Sh. Dilip Aggarwal, A4, on the request of the Branch, 96 relevant calls were provided to the IO Insp. Sh. Deepak Purohit on 06.01.2012 vide seizure memo in a compact disc along with recorded call information report in a sealed packet. Copy of the said CD along with the recorded call information report was also provided for the purpose of day to day investigation. The original order of Union Home Secretary, in respect of 5 telephone numbers, were also provided through the aforesaid seizure memo. A certificate U/S 65 B of Indian Evidence Act, in regard to intercepted calls was also provided to IO Insp. Deepak Purohit on 06.01.2012.
Today I have been shown the seizure memo dated 06.01.2012, vide which the abovesaid documents, as mentioned therein, same is now Ex.PW15/A (D20) and bears my signatures at Point A. The order of Home Secretary, UOI, dated 22.12.2011, is for interception of phone no. 9818517000, is Ex.PW15/B (D21).CC No. 19/13 Page No. 33 of 140
CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 The order of Home Secretary, UOI, dated 22.12.2011, is for interception of phone no. 1125225641, is Ex.PW15/C (D22).
The order of Home Secretary, UOI, dated 30.12.2011, is for interception of phone no. 9560806997, is Ex.PW15/D (D23).
The order of Home Secretary, UOI, dated 30.12.2011, is for interception of phone no. 8130000444, is Ex.PW15/E (D24), The order of Home Secretary, UOI, dated 30.12.2011, is for interception of phone no. 9811602221, is Ex.PW15/F (D25).
The aforesaid orders were received by me and on the basis of the said orders, the interception of the aforesaid mobile phone calls was carried out (Objected to by Ld. Counsel for A2, A3, A4 and A5 regarding the mode of proof submitting that the witness is not the author of the aforesaid orders).
I am now shown the certificate under Section 65B Indian Evidence Act (2 pages) and its Annexure A (3 pages), the same was issued by me and it is now Ex.PW15/G (D26) and it bears my signatures at Point A on each page.
At this stage a dark brown colour envelope with the seal of court (PAB) is opened and is found containing three brown colour empty envelopes in unsealed condition and one CD make Sony alongwith inlay card in protective cover. This is the same CD, in which aforesaid 96 intercepted calls were burnt. The said CD bears my signatures at Point X and is already Ex. P1.
XXXXX by Sh. Rakesh Kumar Sharma, Counsel for A4 Dilip Aggarwal & Anand Aggarwal (A5).
The mobile number of Dilip Aggarwal (A4), calls of which were intercepted, was 9560806997. The calls of the said mobile number were intercepted and recorded for the period from the day, the order by Home Secretary was CC No. 19/13 Page No. 34 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 taken and i.e., 30.12.2011 onwards. I do not remember till what date the said calls were intercepted and recorded. I do not remember the total number of calls on this number, which were intercepted and recorded.
I do not remember the total number of calls which were intercepted and recorded even on remaining aforesaid four mobile numbers.
I was looking after the interception and recording of such calls, in Special Unit. The make of the CD in which the intercepted and recorded calls were burnt, is not mentioned in certificate U/S 65B Indian Evidence Act, Ex.PW15/G (D26). It is correct that make of the CD is not mentioned even in seizure memo Ex.PW15/A (D20).
I do not remember the total number of calls on the aforesaid 5 mobile numbers, which were intercepted and recorded. Myself, my team and my seniors selected the 96 intercepted and recorded phone calls. My team consisted of my DIG Sh. Anurag, SP Sh. Dinendra Kashyap, Insp. Sh. Mukesh Kumar and Insp. Kumar Abhishek. The selection of calls was made before burning the same onto CD and it was done in my office/Special Unit. I do not remember the exact date when such calls were segregated. I do not even remember, the number of days, between the segregation of calls and the same being burnt onto CD. I do not remember the number of days spent on selection of 96 calls. I had heard all the intercepted calls.
Ques: Can you tell the number of days spent on hearing the calls before segregating 96 calls?
Ans. The calls were heard from the day they were intercepted and recorded in our system and till they were burnt, it is a daily process.
I again state that as and when the call is intercepted and recorded, it is attended by us. After coming to know about the facts of the case, after registration of case, the calls relevant to the same were segregated and were given. The calls were reheard before segregation. I do not remember the date when I came to know about the registration/facts of the case. A written communication was CC No. 19/13 Page No. 35 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 received in respect of the registration/facts of the case. I do not remember the date of written communication.
The entire team picked up the 96 calls. It is correct that the information about registration/facts of the case was shared with the entire team. The written communication was received by my senior and he briefed the team. I do not remember the date when this briefing took place.
At this stage, Ld. Defence Counsel requests that CD Ex.P1, be played, as he wants to confront the witness with calls no. 90 and 91, as per Annexure A of Ex. PW 15/G, because transcript of call no. 91 has not been provided to the accused. This fact is recorded in order of Ld. Predecessor Court dated 17.05.2012. Request of Ld. Defence Counsel is allowed.
CD Ex.P1 is played on the laptop produced by CBI, make Sony Vaio. Now the audio file number 10 - 18152100120120102114721.wav (call no. 90) is played.
Court Observation: Call No. 90 is of 441 KB. The audio recording conforms to the transcript, already PW2/PX22. The voices of the speakers are clearly audible.
On opening the properties of this audio file, it shows - "created : Monday, January 2, 2012, 12:18:26 pm modified: Monday, January 2, 2012, 12:18:26 pm accessed: "
Duration (length) - 56 seconds.
Now the audio file number 10- 181521002 20120102114726.wav (call no. 91) is played.
Court Observation: Call No. 91 is of 403 KB. The contents of conversation in this file are the same as in call no. 90, played earlier (vide transcript already MarkPW2/PX22). The voices of the speakers are clearly audible.
On opening the properties of this audio file, it shows -
"created : Monday, January 2, 2012, 12:18:26 pm CC No. 19/13 Page No. 36 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 modified: Monday, January 2, 2012, 12:18:26 pm accessed: "
Duration (length) - 51 seconds.
At this stage, the witness clarifies that the duration of the audio file would be same or may defer by one second, if the same would be played in different media players.
Question: Why did you pick up call no. 91,which is same as call no. 90. Was it to replace some other call? Answer: No. both the calls were recorded on two different telephone numbers. Call no. 90 was intercepted on mobile no. 8130000444 and while the call no. 91 was intercepted on mobile no. 9818517000.
Generally, only one call (pertaining to conversation between two phone numbers) is picked up. But sometimes, for certain reasons, when both the parties/ phone numbers are on interception, the conversation on both the sides/ phone numbers, is picked up, as was done in the instant case.
Question: I put it to you that same was the situation with respect to call no. 84. then why did you not pick up the conversation on both the ends?
Answer: I have already stated that generally, we pick up the conversation only of one side. Because, the contents of the conversation are the same.
It is wrong to suggest that call no. 91 was replaced and that is why, the call no. 90 was copied and pasted in call no. 91. It is wrong to suggest that I did not comply requirements of Section 65 B Evidence Act.
It is wrong to suggest that I did not intercept or record the calls. It is wrong to suggest that I did not burn the said calls on any CD. It is wrong to suggest that I have deposed falsely.
XXXXX by Lallan Ojha (A2) and Hemant Gandhi (A3).
Deferred at the request of Lallan Ojha (A2) CC No. 19/13 Page No. 37 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 and Sh. Pankaj Verma, proxy counsel for Hemant Gandhi (A
3) on the ground that main counsel were present in the morning, but had to leave for a conference/ some matter in the hon'ble High Court.
Examination dated 11.04.2014 XXXXX by Sh. V.K. Ohri, Advocate for Lallan Ojha (A2).
The recording of intercepted calls of a particular phone number, is carried out only as per the order of competent authority and not randomly. The competent authority is approached by Director, CBI. I do not know when did Director, CBI write to competent authority for interception/ recording of calls in the instant case. I had no occasion to see the Director, CBI's letter in this regard. Volunteered : I only saw the order of the competent authority. The recording of the phones in the instant case started on or after the date of issuance of order by the competent authority. But, I do not remember the date. I do not remember when did the interception/ recording of said phones end. I do not sit in the office of Director, CBI. My office was in Special Unit, Jamnagar House, Akbar Road, New Delhi. The interception / recordings were done in the aforesaid office of Special Unit, in this particular case. There is no Telephone Exchange set up in the said office. The interception is being done by using Voice Logger Systems. The service provider is requested to intercept and forward each and every communication in respect of the telephone numbers which were ordered by the competent authority to intercept for the period mentioned in the said order. Such request is made in writing. In the instant case, the requests for interception and forwarding of calls, were made by the Superintendent of Police, Special Unit, CBI, New Delhi to the respective Nodal Officers of the telephone companies/ service providers. I do not know as to when were these letters of request were sent. I do not remember whether these letters are on record. I do not wish to refer the record to respond, as such letters are matter of record.
There is a diary and dispatch register in our office. It is correct that Dak sent and received is diarized. I have now seen the orders already Ex.PW15/B to Ex.PW15/F. Further crossexamination is deferred for CC No. 19/13 Page No. 38 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 02:00 p.m. as it is already 01:30 p.m. RO & AC (Poonam A. Bamba) Special Judge (PC Act)/ CBI03/ND 11.04.2014 Further crossexamination of the witness (PW15) is resumed at 02:15 p.m..
On S.A. XXXXX by Sh. V.K. Ohri, Advocate for Lallan Ojha (A2).
I do not remember how the aforesaid orders Ex.PW15/B to Ex.PW15/F were received in my office, but, these orders were shown to me before starting interception/ recording of the telephone numbers mentioned therein. I do not remember the time of the day, when these orders were shown to me. I also do not remember whether these orders were shown to me in the early morning, afternoon or in the evening.
Question : I put it to you that when a document is received from the Director's office in your office, it bears a dispatch number and on receipt, a diary number is given in your office. What do you have to say?
Answer : I do not know.
I have now seen Ex.PW15/B to Ex.PW15/F. There is no diary/ dispatch or any marking on these orders. It is correct that these orders authorize Director, CBI. It is correct that these orders mention that telephonic messages shall be intercepted and disclosed to Director, CBI.
Question : I put it to you that there is no authorization by the Director, CBI, for interception, in your/ your Unit's favour. What do you have to say?
Answer : The Special Unit, CBI at Delhi, Mumbai, Chennai and Kolkota are authorized to intercept the phone messages on behalf of Director, CBI, vide general order.
I do not know whether the said general order is on record of this case or not. I have already stated that Superintendent of Police had written to the service providers conveying the orders of the competent authority and that I had not personally sent any such request. Whatever was handed over by me vide seizure memo Ex.PW15/A, is duly CC No. 19/13 Page No. 39 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 mentioned in the same. It is correct that vide this seizure memo Ex.PW15/A, the aforesaid letter written by SP to the service providers, were not handed over.
I have already stated that the recording of intercepted messages was done by me and my team, under the supervision of my senior officers.
Question : Can you tell as to who in your team intercepted the messages on different telephone numbers at different times?
Answer : As I have already stated that each and every communication of the respective telephone numbers were recorded in said Voice Logger automatically, which were heard by me and my team members from time to time during the period of interception.
Question : Please tell whether the intercepted calls were heard at the time of interception or later on? Answer : Intercepted calls were attended on real time basis when a person was on duty access and the same were again heard and attended by other team members including me or my supervising officers.
All the calls of the five phone numbers in question in this case, were recorded by Voice Logger. I do not know whether the record of all the calls is presently available with CBI or not. It is correct that the Voice Logger System is password protected. That password was available with me only being a System Administrator of that Voice Logger. As I have already told that the Voice Logger was accessed by different team members by using their password for limited rights at their client system. The client system a computerized system which is attached through LAN system with the said Voice Logger. The description of the client system is not the part of Certificate under Section 65B of Indian Evidence Act, which is Ex.PW15/G. Each and every communication, which got recorded, is protected and its integrity is maintained by the said Voice Logger itself.
There is no system of calculating hash value in the Voice Logger used for intercepting of calls. Hence, no such hash value was calculated at the time of making copies. I do CC No. 19/13 Page No. 40 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 not remember the number of computer systems working in the Special Unit.
It is wrong to suggest that the record was tampered on the asking of the IO. It is wrong to suggest that false and fabricated copies of the recorded conversation were prepared by me. It is wrong to suggest that I had given a false Certificate under Section 65B of Indian Evidence Act at the behest of CBI. It is wrong to suggest that I have deposed falsely.
XXXXX by Sh. Kunal Sharma, proxy counsel for Sh. Jagjit, Advocate for Hemant Gandhi (A3).
Ld. proxy counsel submits that the A3 as well as main counsel Sh. Jagjit had to appear before the court of Ld. Special Judge, at Rohini Sh. R. P. Pandey in another case CBI Vs. Bibianus Topo & Ors., in which Hemant Gandhi (A3) is accused. Request for adjournment is made.
For the aforesaid reasons, crossexamination of the witness is deferred.
RO & AC (Poonam A. Bamba) Special Judge (PC Act)/ CBI03/ND 11.04.2014 Examination dated 02.06.2014 XXXXX by Sh. Jagjit, Advocate for Hemant Gandhi (A3).
My duty hours usually were 09:30 am to 06:00 pm. I do not remember till what time I was in office on 30.12.2011. It is wrong to suggest that I am deliberately not disclosing the timings, in order to conceal the truth.
Director, CBI approaches the competent authority for obtaining permission for interception of telephone calls. I do not remember at what time, the order dated 30.12.2011 for interception of phone number 95608 06997, already Ex.PW15/D (D23), was received by me. My senior had shown the said order to me. Now I do not remember as to who was the said senior officer. I do not remember whether I was on duty on 30.12.2011, same is a CC No. 19/13 Page No. 41 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 matter of record.
Question: I put it to you that you are are not able to tell the details, because you were not on duty on 30.12.2011. What do you have to say?
Answer: I have already stated that I do not remember whether I was on duty on 30.12.2011. I am not concealing any information.
I do not remember between 22.12.2011 till 02.01.2012, on which dates I was on duty or on leave. No addition/ alteration/ modification was carried out in the orders, Ex.PW15/B to Ex.PW15/F, which were shown to me.
The witness is now shown Ex.PW15/B to Ex.PW15/F. It is correct that the date on these documents is mentioned in ink whereas, the month and the year is typed. It is wrong to suggest that these orders are stereotype and are available with CBI and that the date is filled in by CBI, as per their requirement, to suit their case.
Ld. counsel adopts the crossexamination carried out on behalf of other accused persons."
41. Perusal of this testimony shows that PW15 has explained the complete procedure of intercepting the calls. He testified that after registration of the case the relevant calls were segregated and were reheard before segregation. PW15 also issued a Certificate (Ex.PW15/G, D26) under Section 65B of Indian Evidence Act, which I would like to reproduce as under :
"Certificate u/s 65 (b) of Indian Evidence Act with regard to telephone calls mentioned in the endclosed Annexure.CC No. 19/13 Page No. 42 of 140
CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 I M. C. Kashyap, Dy. Supdt. Of Police, posted in the Special Unit, Central Bureau of Investigation, 6/10, Jamnagar House, Akbar Road, New Delhi, am posted in a responsible official position in relation to the operation and management of the computer system which is used for monitoring of telephones. The computer system is a Call Recording Server with Special Voice Logging Software supplied by M/s Kommlabas Dezign Pvt. Ltd., A46, Sector 4, Noida, UP being used for recording of intercepted telephonic communications of different cases simultaneously, as per law.
That I was having lawful control over the use of this computer system, which was used regularly to record intercepted telephonic communications, during the period of interception.
That during the said period, intercepted telephonic communications were recorded regularly in this computer system in the ordinary course of the said activities.
That during the period in question the above said computer system was operating properly and there have been no operational problem so as to affect the intercepted electronic records and the accuracy of their contents at out end.
That the computer hardware and software used in the above said computer system has in built security mechanisms for the integrity of recorded data.
That 96 calls as per annexure 'A' were intercepted and recorded on the above mentioned computer system during 23.12.2011 to 02.01.2012. These calls were reproduced on a Compact Disc and two sets of the same were prepared. These compact discs have been signed by the undersigned for the purpose of identification. One set of Compact Disc was sealed under my signatures. Both sets of Compact Discs were handed over to the Investigating Officer, Sh. Deepak Purohit, Inspector of Police, ACI, CBI, 8th Floor, CBI Head Quarter, Lodhi Road, New Delhi of RC ACI 2012 A 0001, CBI, New Delhi on 06.01.2012 vide a seizure memo.
That these Compact Discs contain reproduction of the recorded call files mentioned in the Annexure 'A' and that during the entire process of reproduction, there has been no change in these recorded call files.
That the matter stated above is correct to the best of my CC No. 19/13 Page No. 43 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 knowledge and belief.
(M. C. Kashyap) Dy. Supdt. of Police, Special unit, CBI, N. Delhi."
42. This certificate refers to Annexure 'A'. Details of the intercepted calls are mentioned in this annexure, which should be read as part and parcel of this certificate. The same would be reproduced by me later.
43. In the aforesaid certificate, PW15 has explained as to in what manner the intercepted calls were recorded in the computer system and how the same were reproduced on a Compact Disc and how the copies of the same were prepared. The certificate is a detailed one and I am of the opinion that PW15 is not required to give any separate certificates at separate stages. The security of the intercepted calls has been ensured by PW15 because as per his testimony in crossexamination (dated 11.04.2014), he has stated that Voice Logger System is password protected, which was available with him only being a System Administrator of that Voice Logger. He has also explained that the Voice Logger was accessed by different members by using their password for limited rights at their client system, which is attached CC No. 19/13 Page No. 44 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 through LAN system with the Voice Logger. He also testified that each and every communication, which was recorded, is protected and its integrity is maintained by the said Voice Logger itself.
44. Ld. Defence counsels have pointed out that human intervention should have been totally ruled out by prosecution. I may mention here that in the entire cross examination of PW15, the defence counsels could point out to Call No. 90 & 91 only. Ld. Defence counsels suggested that Call No. 91 was replaced and Call No.90 is pasted at its place. PW15 has denied and has also explained that Call No. 90 was intercepted on mobile phone no. 8130000444 and call no. 91 was intercepted on mobile phone no. 9818517000. This is a proper explanation, which is further proved by the particulars mentioned in Annexure 'A' to the certificate under Section 65B of Indian Evidence Act in respect of Call No. 90, which shows number of intercepted mobile as 8130000444, whereas, the intercepted mobile at call no. 91 is 9818517000. Of course, the contents of Calls no. 90 and 91 are same and therefore, Call No. 91 has not been specifically proved. There may be a question that as to whether there was a different call no. 91 and was there any possibility of its being CC No. 19/13 Page No. 45 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 exculpatory in nature? I would say that I have no reason to disbelieve the testimony of PW15 in this regard because there is no reason as to why he would remove actual Call No. 91 and put Call no. 90 again in place of it. The conversation of the intercepted calls other than Call No. 91 is so overwhelmingly opens up the entire scenario that it is not reasonable to believe that Call No. 91 could have been exculpatory in nature in any manner.
45. Ld. Defence counsels did not point out as to which calls were tampered. I will further point out that human intervention in this case is only in segregation of the calls and loading it in CD. It does not mean that PW15 and Investigating Officer were tampering the contents of the calls.
46. Accordingly, I am convinced that the electronic data has been intercepted, segregated and copied in CDs without any tampering in the same. In view of the above discussed evidence, coupled with the certificate under Section 65B of Indian Evidence Act, 1872, I hold that prosecution has ruled out any tampering in the electronic evidence of intercepted calls. PW15 has also proved that the calls were intercepted in view of the orders of Home Ministry, which are Ex.PW15/B to Ex.PW15/F (D21 to D25).
CC No. 19/13 Page No. 46 of 140CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 Whether the Orders Ex.PW15/B to Ex.PW15/F, issued by Secretary to the Government of India, Ministry of Home Affairs are violative of Section 5(2) of Indian Telegraph Act, 1885 read with Rule 419(A) of the Indian Telegraph Rules 1951, notified on 01.03.2007
47. It is argued by Sh. Rakesh Kumar Sharma, Ld. Defence counsel for A4 and A5 that telephonic interceptions can be done only when it is required in interest of sovereignty of India and security of State and that it should be done in exceptional cases. I agree that intercepting the telephonic calls is a very responsible act and has to be done only in the circumstances as mentioned in Section 5 (2) of the Indian Telegraph Act, 1885. Perusal of this provision shows that Central Government can do so if sovereignty, integrity of India, security of State, public order is involved as well as for preventing incitement of commission of an offence. In the present case the interceptions have been done with the orders of Home Ministry with a view to prevent the offences, which are now under consideration before this court. Therefore, I do not find any violation of any law in the aforesaid interceptions.
The arrangement between service provider and Special Unit (i.e. SU) of CBI
48. PW4 Anuj Bhatia, a Nodal Officer, Vodafone CC No. 19/13 Page No. 47 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 Mobile Services Ltd. has answered this issue in cross examination by A2. PW4 testified (in crossexamination dated 10.2.2014) that there is an arrangement of CBI with their office for monitoring of calls of specified mobile numbers, which are sanctioned for surveillance and that the same is under proper custody of CBI. PW4 further testified that the service provider does not have any access to such monitored calls and it only provides such facility to CBI.
49. I have already reproduced the complete evidence of PW15 M. C. Kashyap. However, at the cost of repetition, I would again refer to his testimony (i.e. Crossexamination dated 11.04.2014 by Sh. V. K. Ohri, Advocate for A2), in which PW15 has stated that the Special Unit, CBI at Delhi, Mumbai, Chennai and Kolkata are authorized to intercept the phone messages on behalf of Director, CBI, vide general order and that the Superintendent of Police had written to the service providers conveying the orders of the competent authority.
Whether CBI was empowered to take voice samples
50. Now, I will take up the question of powers of Investigating Officer in respect of taking of voice sample of CC No. 19/13 Page No. 48 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 the accused persons. In Ritesh Sinha Vs. State of U. P. (2013) Crl. L. J. 1301, Hon'ble Supreme Court of India was faced with the question as to whether a Magistrate can direct taking of voice sample of accused. The Division Bench of Hon'ble Supreme Court agreed on the point that if accused tenders his voice sample voluntarily, the same is not hit by Article 20(3) of Constitution of India. However, Hon'ble Mr. Justice Aftab Alam was of the opinion that the Magistrate cannot order an accused to give his voice sample.
51. Perusal of this judgement shows that both the judges of Hon'ble Supreme Court agreed that if the accused gives his voice sample voluntarily during investigation, there is no violation of right under Article 20 of the Constitution. Both the judges agreed that voice sample is like finger print impression, signatures or specimen hand writing of an accused. Justice Ranjana Prakash Desai observed that identification of voice involves measurement of frequency and intensity of sound waves which fell in the ambit of inclusive definition of "measurement" appearing in Identification of Prisoners Act, 1920. However, Hon'ble Mr. Justice Aftab Alam differed and held that it is not a CC No. 19/13 Page No. 49 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 measurement. Therefore, the entire issue was referred to a Bench of three Judges.
52. I have perused this judgement carefully and I am of the opinion that fundamentally both the judges of Hon'ble Supreme Court agree that if given voluntarily, voice sample of accused can be taken by police during investigation and the same is not violative of Constitution of India. Hon'ble Justice Ranjana Prakash Desai has specifically mentioned that voice prints are like finger prints in that each person has a distinct voice, with characteristic features dictated by vocal cavities and articulators. Justice Aftab Alam has not given a dissenting note on this observation. But he differed on the powers of Magistrate. Question before Hon'ble Supreme Court was as to whether a magistrate can direct an accused to give his voice samples.
53. Thus, the dissent is on the question of "powers of Magistrate" and not on powers of police to take voice sample during investigation.
54. I am of the considered opinion that if a fact is relevant, Investigating Officer is entitled to investigate and CC No. 19/13 Page No. 50 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 collect the same in his investigation. Further, the investigation is the exclusive domain of the Investigating Officer and he can take the handwritings, blood samples, hair samples and voice samples, etc. without any permission from the magistrate. Section 2 (h) of Criminal Procedure Code mentions that "investigation" includes all proceedings under this Code or the collection of evidence conducted by a police officer. Therefore, the scope of investigation is very wide and it includes taking assistance of scientific experts. Section 9 of Indian Evidence Act makes all the facts relevant, which establish the identity of a person, he may be an accused or may be a witness.
55. Therefore, even if it is held by larger Bench of Supreme Court of India, on the reference by Division Bench in Ritesh Sinha, that the Magistrate does not have power to direct the accused to give his voice sample, the powers of Investigating Officer to do so remain untrammeled.
56. In view of above discussion, I am of the opinion that taking of voice samples is akin to taking of handwriting specimen by the Investigating Officer during investigation and therefore, judgement of Hon'ble Supreme Court of India CC No. 19/13 Page No. 51 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 in State of Bombay versus Kathi Kalu Oghad, AIR 1961 SC 1808 case would be squarely applicable, where Hon'ble Supreme Court of India held that police during investigation can take handwriting samples of accused, though Magistrate cannot direct an accused to give his handwriting sample. Accirdingly, taking of voice samples during investigation without the orders of Magistrate would be admissible if given voluntarily.
Whether the accused persons had given their voice samples voluntarily?
57. PW34 P. K. Gottam, Senior Scientific Officer, CFSL testified that Sh. Ram Singh, DSP had brought one requisition for taking voice sample of Dr. Anup Kumar Srivastava (A1). He testified that specimen voice was given voluntarily by Dr. Anup Kumar Srivastava (A1), but later i.e. after recording the specimen voice, Dr. Anup Kumar Srivastava (A1) was refusing to give the same and made a note on the Memorandum for Voice Sample, prepared by DSP Ram Singh. This Memorandum has been proved as Ex.PW34/A (D33, pages 113 & 115).
58. I have perused the noting dated 23.01.2012 of A 1 on the same, which is in Hindi. If translated in English, it CC No. 19/13 Page No. 52 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 states that, "Initially I had stated that I am not inclined to give voice sample. But, on the asking of Investigating Office, I have given the voice sample. The above written .......... is wrong." This itself shows that the accused were free enough to raise any type of objection before the sample taking scientific officer at any stage.
59. Prosecution has examined PW13 A. D. Tiwari, Senior Scientific Officer, who took the voice samples of other accused persons and witnesses.
60. The Memorandum of Sample Voice Recording Ex.PW13/1 (D11) dated 04.01.2012 pertains to Lallan Ojha (A2).
61. Memorandum of Sample Voice Recording Ex.PW13/10 (D15) dated 04.01.2012 pertains to accused Dilip Kumar Aggarwal (A4).
62. Memorandum of Sample Voice Recording Ex.PW13/13 (D19) dated 04.01.2012 pertains to Anand Kumar Aggarwal (A5).
63. Memorandum of Sample Voice Recording Ex.PW13/4 (D12) dated 04.01.2012 pertains to accused CC No. 19/13 Page No. 53 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 Hemant Gandhi (A3).
64. Perusal of the memorandums shows that none of the accused raised any objection while giving their voice samples. Hence, I hold that the accused persons had given voice samples voluntarily.
Whether the voice expert (PW16) has no legal authority to compare the voice samples with the questioned voices
65. Ld. Defence counsel has referred to Section 79(A) of The Information Technology Act, 2000, which is reproduced as under :
"CHAPTER XIIA EXAMINER OF ELECTRONIC EVIDENCE 79A. Central Government to notify Examiner of Electronic Evidence.- The Central Government may, for the purposes of providing expert opinion on electronic form evidence before any court or other authority specify, by notification in the Official Gazette, any Department, body or agency of the Central Government or a State Government as an Examiner of Electronic Evidence.
Explanation.--For the purposes of this section, "electronic form evidence" means any information of probative value that is either stored or transmitted in electronic form and includes computer evidence, digital audio, digital video, cell phones, digital fax machines.]"
66. Ld. Defence counsel has submitted that A2 had sought information under RTI Act as to whether any such CC No. 19/13 Page No. 54 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 expert has been notified or not. It is submitted that A2 received following reply :
"No.14 (31)/2014ESD Ministry of Communication & Information Technology Department of Electronics & Information Technology Electronics Niketan,6, CGO Complex New Delhi110003 Dated: 19.03.2014 Subject: RTI application received from Shri Lallan Ojha, Delhi.
With reference to your RTI application which was received in this department requesting for the following information.
Please inform whether the Central Govt. has Issued any notification declaring CFSL/CBI to be examiner of "Electronic Evidence" as required under Sec 79A of IT Act 2000 and also The Act(amendment) Act,2008.
The information as received from the custodian of the information is placed below:
"Government has not issued any notification under sec 79(A) of the IT Act for notifying CFSL/CBI New Delhi to be examiner of Electronics Evidence Act".
(A.K.Kaushik) Additional Director & CPIO (ESecurity & Cyber Laws) Shri Lallan Ojha 21, Savita Vihar Delhi110092 M9811602221'
67. Ld. Defence counsel argues that the aforesaid reply received under RTI was confronted to PW16 Dr. Rajender Singh, Director, CFSL, Government of India and he admitted that no notification in his name has been issued by Government of India under 79(A) of Information Technology CC No. 19/13 Page No. 55 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 Act, 2000.
68. I have considered this submission. Section 79 (A) of Information Technology Act, 2000 has already been reproduced by me. It simply says that Government may appoint such an expert. Therefore, if no notification under Section 79 (A) has been issued in name of any expert, it does not mean that expert becomes ineligible to give opinion. The opinion of an expert is relevant under Section 45 of Indian Evidence Act. As per Section 45, expert is a person, who is especially skilled in foreign law, science or art. PW16 has testified that he has more than 25 years of experience in the field of forensic voice identification. He also testified that he has examined more than 1000 cases of such nature, which involves more than 3000 persons' voices. His academic qualification is M.Sc., B.Ed., M.Phil and Ph.D (Phy.). Therefore, I hold that even though no notification under Section 79 (A) of The Information Technology Act, 2000 is issued by Government in his name, still he is an expert, who is specialized in the science of voice identification.
What is the evidentiary value of opinion of voice expert (PW16)
69. Dr. Rajender Singh, Director, CFSL has testified CC No. 19/13 Page No. 56 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 that he compared the questioned recorded conversation of Smt. Reena Gandhi, Rajesh Verma, Hemant Gandhi, Lallan Ojha, Dilip Aggarwal, Anand Kumar Aggarwal, Dilip Kumar Yadav and Anup Kumar Srivastava with their specimen voices and he found the same matching. He proved his report as Ex.PW16/A and Ex.PW16/B.
70. A question has been raised about the possibility of error in identification/ comparison by the expert. This witness was thoroughly crossexamined and I would like to reproduce relevant portion of crossexamination by Sh. V. K. Ohri, Ld. Defence counsel for A2 as under :
"Question : Is it correct that there is an error in the range of 0 to 80% in auditory examination of voice for comparison?
Answer : Depending upon the quality of the voice, that is, if a person mimics or disguises his voice while giving sample, the percentage of error may be more, that is, upto 80%. But, if the sample quality is good, that is, given in the manner a person speaks, the error would be very less and could be even 0 error. The error in auditory examination is further verified by objective method, that is, voice spectrography, which has accuracy and reliability of voice comparison to the extent of more than 99% even if a person mimics or disguises in his sample voice.
Depending upon the quality of voice, the recorded speech is enhanced or reduced if the recorded voice is feeble or loud. It is wrong to suggest that frequency of the voice is also increased. Volunteered: Frequency of speech of a particular person in a particular instance, remains the same. There is no need to mention in the report or in the internal worksheet about enhancing or reducing the volume of the CC No. 19/13 Page No. 57 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 voice. During examination, refurbishing is done if there is external noise. If refurbishing is done in any case, we do not mention the same in the report/ internal worksheet."
71. Opinion of PW16 has been assailed by Ld. Defence counsels on the ground that a preliminary enquiry was instituted against him by CBI and therefore, being under pressure of CBI, he prepared his reports as per the dictats of CBI. In crossexamination (dated 03.04.2014) by Sh. Rakesh Kumar Sharma, Advocate for A4 and A5, PW16 admitted that preliminary enquiry was initiated against him in the year 20112012. He explained that nothing was found against him in the said preliminary enquiry because it was basis on a fabricated and anonymous complaint. He also stated that the preliminary enquiry was registered against him in June 2012, whereas the report Ex.PW16/A was given by him in the present case on 11.02.2012 and report Ex.PW16/B was given by him on 17.02.2012 i.e. much before initiation of preliminary enquiry. Hence, I find no substance in the submissions of Ld. Defence counsel that PW16 gave his opinion under the pressure of CBI. Rather, in his report he has given detail reasons and has also mentioned that question of specimen voices were subject to spectrographic analysis on Computer Voice Spectrograph for their Voice Grams and that the acoustic features namely formant frequency distribution, CC No. 19/13 Page No. 58 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 intonation pattern, frequent time coordination distribution, etc. corresponded with their respective features in the specimen advances.
72. I may mention here that the report Ex.PW16/A (D68) is in respect of the voices of Anup Kumar Srivastava and Hemant Gandhi, whereas, the report Ex.PW16/B (D69) is in respect of the voices of Lallan Ojha, Hemant Gandhi, Smt. Reena Gandhi, Dilip Kumar Yadav, Dilip Aggarwal, Anand Kumar Aggarwal. The perusal of the report shows that on many questioned voices, the expert has not given opinion due to lack of insufficient common clearly audible sentences/ words. The report is reasoned, scientific in nature and defence counsels have not brought any material to show as to why the same should not be believed.
73. Ld. Defence counsel has assailed his opinion on the ground that there could be error upto 80% in such opinions. Ld. Defence counsel has referred to following portion of the crossexamination, which is reproduced as under :
"Question : Is it correct that there is an error in the range of 0 to 80% in auditory examination of voice for comparison? Answer : Depending upon the quality of the voice, that is, if a person mimics or disguises his voice while giving sample, the percentage of error may be more, that is, upto 80%. But, if the CC No. 19/13 Page No. 59 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 sample quality is good, that is, given in the manner a person speaks, the error would be very less and could be even 0 error. The error in auditory examination is further verified by objective method, that is, voice spectrography, which has accuracy and reliability of voice comparison to the extent of more than 99% even if a person mimics or disguises in his sample voice."
74. From this answer, two facts can be understood. First, there are chances of error. Second, with the help of a scientific instrument i.e. voice spectrograph, more than 99% accuracy is achieved in identification of voice. In the present case PW16 has used voice spectrography and has given a very reasoned report, wherein he has not given opinion on certain portions of the questioned voices.
75. In view of this discussion, I hold that the voice identification report of PW16 is scientific in nature and has to be accepted.
76. In view of various common issues as adjudged above, I take up the evidence against each accused as well as the legal issues separately raised by each accused.
ANUP KUMAR SRIVASTAVA (A1)
77. The proceedings against this accused were quashed by Hon'ble High Court of Delhi vide order dated 21.11.2013 in CRL. M.C. 4360/2012. I may point out that CC No. 19/13 Page No. 60 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 till that date 13 prosecution witnesses had already been examined.
HEMANT GANDHI (A3)
78. This accused went abroad after seeking permission of this court, but never returned back. Consequently, he was declared Proclaimed Offender vide ordersheet dated 14.03.2016.
79. It is necessary to mention here that before 14.03.2016, the prosecution evidence had already been closed and when he was declared Proclaimed Offender, the case was already at the stage of recording statements of the accused persons under Section 313 Cr.PC. Since he had absconded, his statement under Section 313 Cr.PC could not be recorded.
LALLAN OJHA (A2)
80. Sh. V. K. Ohri, Advocate for accused Lallan Ojha (A2) has strongly assailed the prosecution case and has also filed written submissions. I take up his submissions as under :
1. Whether PW8 was competent to accord sanction under Section 19 of Prevention of Corruption Act, 1988 in respect of A2.CC No. 19/13 Page No. 61 of 140
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81. It is argued by Ld. Defence counsel that the sanction to prosecute Lallan Ojha (A2) was accorded by the Commissioner Central Excise Delhi I, whereas the Chief Commissioner erstwhile Principal Collector is the Appointing authority of Superintendent Central Excise as per "the Superintendent Central Excise Recruitment Rule 1986". Ld. Defence counsel submits that this is also substantiated by another document, "F. no.A.32012/2004Ad.IIA", issued by Government of India, Ministry of Finance Department of Revenue Central Board of Excise and Customs dated 23rd December 2008, which was obtained by A2 through RTI. Ld. Defence counsel has referred to a judgement in a case Amar Nath Verma vs. The Union of India and Anrs. decided on 21st January 2011 by Hon'ble Patna High Court. It is accordingly argued by Sh. V. K. Ohri, Ld. Defence counsel that the said sanction is bad in law and that as there is no valid sanction, the prosecution has to fail against Lallan Ojha (A2).
82. I have considered the rival submissions. It is a settled law that sanction accorded by an incompetent authority would go to the root of the case and would invalidate even the cognizance of the offence against a public servant. Therefore, it is to be seen as to whether the CC No. 19/13 Page No. 62 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 sanctioning authority was competent to accord sanction under Section 19 of Prevention of Corruption Act, 1988 to prosecute accused Lallan Ojha (A2).
83. Sh. Manoj Shukla, Ld. Senior Public Prosecutor has drawn my attention to the CCS (CCA) Rules, 1965 and has submitted that sanctioning authority i.e. PW8 Dr. John Joseph, the then Commissioner, Customs & Excise, Delhi1, was competent to accord the sanction.
84. In order to understand the submissions of A2, I would like to reproduce the relevant portion of the schedule annexed with the Recruitment Rules for the post of Superintendent of Central Excise, which have been collectively marked as Annexure A by A2, which he procured from Ministry of Finance under RTI. The relevant portion is reproduced as under :
"T H E S C H E D U L E ........
........
In case of recruitment by promotion/ If appointmental promotion Circumstances in which the deputation/ transfer/grade from which Committee exists, what is its Public Service Commission is promotion/deputation/transfer to composition. To be consulted in making be made appointment
12. 13. 14.
CC No. 19/13 Page No. 63 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 PROMOTION Group 'B' Departmental Promotion Consultation with Union Inspector of Central Excise (Ordinary Committee Public Service Commission Grade) with 8 years regular service in (1) Jurisdictional Principal Colle is necessary while making the grade, if any, rendered in the ctor of Customs and Central direct recruitment.
grade of Inspectors (Senior Grade). Excise or in his absence Dire ctor General of Inspection (Customs) and Central Excise) - Chairman.
.............."
85. Perusal of above reproduced portion of 'The Schedule', taken by A2 under RTI Act, clearly shows that the Rule does not show as to who is the appointing or removal authority.
86. Ld. Defence counsel has referred to a judgement dated 21.01.2011 of Patna High Court in the matter of Amar Nath Verma vs. Union of India. It is argued that Hon'ble Patna High Court has held that Principal Commissioner is the appointing authority of Superintendent of Central Excise Department as per Central Excise Recruitment Rules 1986, published on 17.12.1986.
87. I have considered this submission and have perused the aforesaid case law. I have already mentioned that A2 has filed the copy of Recruitment Rules for the post of Superintendent of Central Excise in Central Excise Collectorate, but in the Rules it is nowhere written as to who is the appointing or dismissing authority. One copy of CC No. 19/13 Page No. 64 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 Schedule to it has also been filed, relevant portion of which has already been reproduced by me. However, as already discussed, this Schedule does not specify appointing/ removing authority. Perusal of the judgement cited by Ld. Defence counsel shows that a plea was raised before Hon'ble Patna High Court, however, no finding was given on this issue by the said court.
88. A2 has also placed on record AnnexureB, which is "Information under RTI Act". Relevant portion of the document is reproduced as under :
"F.No.A.32012/1/2004Ad.IIA Government of India Ministry of Finance Department of Revenue Central Board of Excise & Customs ***** New Delhi, the 23rd December, 2008.
To All the Cadre Controlling Authorities (CCAs) under CBEC (by name).
Subject: Grant of financial upgradation under the ACP Scheme to GroupB Officers under the CBEC - instructions regarding.
Sir, I am directed to refer to the Deptt. of Personnel & Training's O. M. No.35034/1/1997Estt.(D) dated 09.08.1999, regarding grant of financial upgradation to the eligible officers under the Assured Career Progression (ACP) Scheme. Under the Scheme, GroupsB, C and D officers are entitled to 1st and 2nd financial upgradation on completion of 12 and 24 years of service, ........
2. However, on careful consideration, it was felt that the above practice is not consistent with the position of various Rules and Instructions, mainly for the reason that the GroupB officers continue to remain in GroupB even after grant of ACP and hence, approval of the Hon'ble FM, who is the appointing CC No. 19/13 Page No. 65 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 authority for GroupA, should not be necessary for this purpose. The appointing authorities for GroupB, namely, the cadre controlling Chief Commissioners/ Directors General, should be able to approve such proposals. .........
...........
............
4. ............... The Cadre Controlling Chief Commissioners/ Directors General are competent to grant ACP to GroupB officers, being their Appointing Authorities. As a natural corollary, the composition of Screening Committee for GroupB officers shall be the same as that of the DPC for Group B officers. It is ascertained that in CBDT, the work of grant of ACP to Group B officers has already been assigned to Cadre Controlling Chief Commissioners.
5. In view of the above, it has been decided that henceforth, the work of grant of ACP benefit to GroupB officers shall be undertaken by the concerned Cadre Controlling Chief Commissioner/ Directors General, being the Appointing Authorities for GroupB officers. The composition of Screening Committee for GroupB officers shall be the same as that of the DPC for Group B officers. The concerned Cadre Controlling Chief Commissioner/ Directors General, being the Appointing Authorities for GroupB officers, shall be competent to accept the recommendations of the Screening Committee and to sanction the ACP benefit to GroupB officers. This procedure shall be applicable not only to the future cases, but also to the past pending cases for grant of financial upgradation under the ACP Scheme which could not be processed by the Board for want of availability of complete documents from the concerned field formations.
6. This issues with the approval of the Competent Authority.
Yours faithfully, (L. R. Aggarwal) Deputy Secretary to the Govt. of India"
89. Based on the aforesaid letter dated 23.12.2008 obtained by A2 under RTI Act, it is argued by Sh. V. K. Ohri, Ld. Defence counsel that PW8 Dr. John Joseph, the then Commissioner, Customs & Central Excise, Delhi was not competent to accord sanction to prosecute A2 and that Chief Commissioner was the appointing authority of the CC No. 19/13 Page No. 66 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 Superintendent. Ld. Defence counsel has drawn my attention to crossexamination of PW8 when the attention of the witness was drawn to the aforesaid letter. On seeing this letter, PW8 stated that he does not dispute the order of the Ministry, but in practice it is the Commissioner, who appoints the Superintendent of GroupB officers and has also power to remove them from the services. PW8 further testified that there is some office order under which the aforesaid practice is being continued contrary to the order of Ministry.
90. Ld. Defence counsel submits that the appointing authority of Superintendent is Chief Commissioner as mentioned in the above reproduced letter dated 23.12.2008 and that department is continuing with a wrong practice of the Commissioner according the sanction, despite his not having any authority to remove or appoint a Superintendent.
91. I have carefully considered the letter dated 23.12.2008 and I would like to mention that appointing or removing authority is determined by the Service Rules. No office order of any Ministry can change the scheme provided by the Service Rules. I would like to refer to Rule 11 of Central Civil Services (Classification, Control & Appeal) Rules, 1965, which provides following penalties, which can CC No. 19/13 Page No. 67 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 be imposed upon a public servant :
Minor Penalties
(i). Censure
(ii). Withholding promotion
(iii). Recovery of pecuniary loss
(iii)(a). Reduction to a lower stage in time scale of pay by one stage
(iv). Withholding the increment Major Penalties
(v). Reduction to a lower stage in time scale for a specified period
(vi). Reduction in lower time scale of pay, grade, post or service
(vii). Compulsory retirement
(viii). Removal from service
(ix). Dismissal from service
92. Rule 12 is in respect of disciplinary authorities and refers to the THE SCHEDULE, which specifies the appointing authorities and the removal authorities.
93. Now, I would like to reproduce relevant portion of CC No. 19/13 Page No. 68 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 THE SCHEDULE, which mentions appointing authority and removal authorities of various services :
PART II - Central Civil Services, Group 'B' - (Contd.) (Except for Civilians in Defence Services) Authority competent to impose penalties and penalties which it may Serial Appointing impose (with reference to item numbers in Rule 11) Number Description of service Authority Authority Penalties (1) (4) (5) (2) (3) ... ..... .... ...... .....
(i) to (iv)
12. Central Excise Service, Group Collector of Collector of Central Excise/ Land 'B'Superintendents Group Central Customs; All 'B' (including Deputy Excise/Land Headquarters Assistant to the Customs;Nar ..............
Collector)and District Opium cotics Com ..............
Officers, Group 'B'. missioner. ..... ........ ........ ............. ......
94. The above quoted portion of THE SCHEDULE in reference to Rule 12 of CCS (CCA) Rules, 1965 make is clear that the Superintendents are Group 'B' officials in Central Excise Department and their appointing authority is Collector. It further shows that Collector is also empowered to impose all penalties upon the Superintendents including the major penalties of dismissal and removal.
95. Hence, I am convinced that PW8 Dr. John Joseph, Commissioner, Customs & Central Excise was competent to accord sanction to prosecute A2.
CC No. 19/13 Page No. 69 of 140CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016
96. I would like to touch a minor issue here. As per The Schedule to the CCS (CCA) Rules, 1965, the Collector of the Central Excise is the disciplinary authority of Group 'B' Superintendents. The designation of PW8, who is sanctioning authority in this case, is Commissioner, Customs & Central Excise. It has not been disputed that the designation of Collector has been changed to Commissioner. Still with a view to satisfy this court, Ld. Senior Public Prosecutor has filed copy of following notification, which is reproduced as under :
"Notification No. 26/95C.E. (N.T.), dated 661995.
Notification under Section 37 - In exercise of the powers conferred by section 37 of the Central Excises and Salt Act, 1944 (1 of 1944) and of all other powers enabling it in this behalf the Central Government hereby directs that references to any authority specified in column 2 of the Table below in the rules made or deemed to have been made under that section or in any other notification, decisions or orders, issued or made under such rules or under any other section of the said Act shall, unless the context otherwise requires, be construed as references to the authorities specified in column 3 of the Table below : TABLE Sl.
No. Existing Designation Substituted Designation
(1) (2) (3)
1. Principal Collector of Central Chief Commissioner of Central Excise
Excise
2. Collector of Central Excise Commissioner of Central Excise
3. Collector of Central Excise Commissioner of Central Excise
(Appeals)/Collector(Appeals) (Appeals)/Collector (Appeals)/ Commissioner(Appeals)
4. Deputy Collector of Central Joint Commissioner of Central Excise Excise
5. Assistant Collector of Central Assistant Commissioner of Central Ex Excise Excise or Deputy Commissioner of Central Excise"CC No. 19/13 Page No. 70 of 140
CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016
97. Copy of this notification was supplied to the accused and he has not disputed the correctness of the same.
98. In order to further clarify the issue, prosecution has also filed a copy of notification dated 13.07.2010. It was supplied to the accused and correctness of the same has not been disputed. I reproduce the same as under :
"F.No. C11016/2/2007Ad.V Government of India Ministry of Finance Department of Revenue Central Board of Excise & Customs New Delhi, Date 13th July, 2010.
ORDER Consequent upon reclassification of posts of Inspector (C.Ex.), Inspector (PO) and Inspector (Examiner) under CBEC as Gr 'B' non gazetted, based on the norms of the Department of Personnel and Training, vide Board's Order C 18013/100/2003Ad.III(B) date 11th December, 2003 read with letter of even number dated 24th October, 2007 addressed to all Chief Commissioners and Director Generals and designation of 'Commissioner' as the appointing authority for the said reclassified posts of Inspector (C.Ex), Inspector (PO) and Inspector (Examiner) vide Board's Order C 18013/100/2003Ad.III(B) date 22nd December, 2009, as also keeping in view the reclassification of Gr. 'D' posts as Gr 'C' on the recommendations of the Sixth Pay Commission, the question of specifying authorities to discharge functions as Disciplinary Authority, Appellate Authority and Revisionary Authority under CCS (CCA) Rules, 1965 for various Gr 'B', 'C' and erstwhile Gr 'D' category of posts has been engaging the attention of the Board.
2 The matter has been examined in consultation with the Department of Personnel and Training. Considering that in terms of Rule 12 (4) (a) of CCS(CCA) Rules, 1965, the level of disciplinary authority for major penalty can not be lower than the Appointing Authority and that under Rule 4 to 6 of CCS(CCA) Rules, 1965 regarding classification of posts as also other rules such as Rule 24 and 29/29A, there is no distinction between Gr. 'B' gazetted and Gr 'B' nongazetted, it has CC No. 19/13 Page No. 71 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 been decided with the approval of the President to specify the following authorities as Disciplinary Authority, Appellate Authority and Revisionary Authority for Gr. 'B' and 'C' (including erstwhile Gr. 'D') posts in CBEC Classification Disciplinary Authority Appellate Authority Revisionary of posts Authority Gr. 'B' Commissioner Chief Commissioner President Gr. 'C' Jt. Commissioner/Addl. Commissioner Chief (including Commissioner Commissioner erstwhile Gr.
'D') Gr. 'C' Where Commissioner has Chief Commissioner Chairman, CBEC (including passed an order in a common or Member (P&V) erstwhile Gr. disciplinary proceeding 'D') 3 The above Order takes effect from the date of issue. Necessary amendment to the Schedule to CCS(CCA) Rules, 1965 is being carried out separately.
4 The pending Appeals/Revision Applications shall be decided by the competent authorities as per extant provisions.
5 In respect of persons serving in various Directorates, officers in rank equal to the above specified authorities shall be the corresponding Disciplinary Authority, Appellate Authority and Revisionary Authority.
6 Hindi version will follow [ By Order and in the name of the President ] (Akhatarul Hanif) Under Secretary to the Government of India To All the Chief Commissioners/ Directors General in CBEC All Commissioners/ All Addl. Directors General in CBEC"
99. This order dated 13.07.2010 leaves me in no doubt about the competency of PW8 in according sanction under Section 19 of Prevention of Corruption Act, 1988 in respect of A2.CC No. 19/13 Page No. 72 of 140
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100. Therefore, I am convinced the Commissioner of Central Excise (which is new designation of the Collector vide above reproduced notification) is competent to remove A2 from the service and has rightfully issued the sanction under Section 19 of Prevention of Corruption Act, 1988 to prosecute A2.
2. Whether holding of an additional charge would affect the competence of sanction according authority?
101. Ld. Defence counsel has drawn my attention to an order Ex.PW8/B, which I am reproducing as under :
"F.No.A22011/2/2011Ad.II Government of India Ministry of Finance Department of Revenue (Central Board of Excise and Customs) ********* North Block, New Delhi Dated, the 2nd January, 2012 Office Order No. 02/2012 It has been decided that Shri John Joseph, Commissioner, LTU, Delhi will hold the additional charge of the post of Commissioner, Central Excise, DelhiI with immediate effect and until further orders.
(R. Sanehwal) Director Telfax : 2309 2401 ........
........."CC No. 19/13 Page No. 73 of 140
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102. It is argued by Ld. Defence counsel that PW8 was not the proper authority to issue sanction. The above reproduced office order no. 02/2012 shows that he was only given an additional charge of post of Commissioner, Central Excise, Delhi1. On perusal of this order, I find that full fledged charge of the post of Commissioner was given to PW
8. Therefore, it cannot be said that the status of PW8 at the time of according sanction was that of Additional Commissioner, who is lower in rank than the Commissioner. Additional charge of Commissioner should not be confused with the post of Additional Commissioner. PW8 has testified that from 02.01.2012 to 14.01.2013, he was Commissioner, Customs & Excise, Delhi1 and had succeeded Dr. Anup Kumar Srivastava (A1).
3. Whether the sanction order suffers from non application of mind?
103. It is argued by Sh. V. K. Ohri, Advocate that the sanction order Ex.PW8/C suffers from nonapplication of mind. He has drawn my attention to the crossexamination of PW8 wherein he stated that he did not remember as to what documents were received alongwith the letter of CBI. He did not remember as to in which language the transcripts were CC No. 19/13 Page No. 74 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 provided to him. Further, paras no. 1 to 14 of the sanction order Ex.PW8/C pertaining to accused Lallan Ojha (A2) are exact copy of paras no. 1 to 14 of sanction order Ex.PW5/B pertaining to Anup Kumar Srivastava (A1).
104. I have considered this submission. If paras no. 1 to 14 are similarly worded in both the sanction orders, it is because of the reason that there were common allegations against A1 and A2. PW8 had stated that he had got draft of sanction order from CBI and that he had gone through the same and had corrected whereever it was required and thereafter, he prepared fresh sanction order himself and signed it. This process itself shows that PW8 had given thoughtful consideration to all the facts presented before him. In crossexamination he had also stated that he had gone through all the documents furnished alongwith the letter of CBI. I am convinced of this testimony and I am of the opinion that the sanction order does not suffer from nonapplication of mind.
4. Whether it was merely a vexatious search covered under Section 22 of Central Excise Act 1944
105. I would like to reproduce Section 22 of the Central Excise Act as under :
CC No. 19/13 Page No. 75 of 140CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 Section 22. Vexatious search, seizure, etc., by Central Excise Officer. Any Central Excise or other officer exercising powers under this Act or under the rules made thereunder who
a) without reasonable ground of suspicion searches or causes to be searched any house, boat or place;
b) vexatiously and unnecessarily detains, searches or arrests any person;
c) vexatiously and unnecessarily seizes the movable property of any person, on pretence of seizing or searching for any article liable to confiscation under this Act;
d) commits, as such officer, any other act to the injury of any person, without having reason to believe that such act is required for the execution of his duty;
shall, for every such offence, be punishable with fine which may extend to two thousand rupees.
Any person wilfully and maliciously giving false information and so causing an arrest or a search to be made under this Act shall be punishable with fine which may extend to two thousand rupees or with imprisonment for a term which may extend to two years or with both.
106. Ld. Defence counsel has referred to the statements of PW9 Pradeep Kumar, the Commissioner of Central Excise, PW21 Sunil Kumar, the Superintendent, Central Excise and PW29 K. N. Srivastava, Inspector, Central Excise. Ld. Defence counsel submits that verification of intelligence can be done by Superintendents. Ld. Defence counsel submits that PW11 B. Mohan, Deputy Commissioner has testified that unauthorized raids are punishable under Section 22 of Central Excise Act, 1944. Ld. Defence counsel has referred to the statement of PW12 S. K. Singh, CC No. 19/13 Page No. 76 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 Superintendent, who testified that on 27.12.2011, Sh. B. Mohan, the Deputy Commissioner, informed him (i.e. PW12) that there is a verification search operation going to be conducted on 28.12.2011 and A2 also asked PW12 over intercom to join verification. It is argued that this shows that the search was conducted with the knowledge and permission of the higher officers.
107. Ld. Defence counsel has referred to Central Excise Law Manual 200102 Chapter 17 PartI para 2.3 and para 2.4. I would like to reproduce the same as under :
"CHAPTER 17 SEARCH, SEIZURE ARREST AND PROSECUTION PART 1 SEARCH AND SEIZURE ........
.......
.......
2.3 In terms of the said rules, an officer not below the rank of the Inspector of Central Excise, duly authorized by Commissioner by special or general order, can search at any time, any premises or conveyance where he has reason to believe that excisable goods are manufactured, stored or carried in contravention of the provisions of the Act or rules. For a registered premises or for stopping and searching any conveyance in transit no search warrant is required. However, in other cases, normally search warrants are issued by the Deputy/ Assistant Commissioner authorizing the search. The Central Excise Officer is also authorized to stop and search any conveyance as well. The search is to be carried out in the presence of two independent witnesses.
2.4 Section 22 deals with vexatious searches, seizure etc. by Central Excise Officers. In such case the Central Excise office will be CC No. 19/13 Page No. 77 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 liable to punishment under the law. Similar provision is made applicable to any person wilfully and malaciously giving false information leading to vexatious search."
108. Referring to the aforesaid provisions, it is argued by Ld. Defence counsel that at the most, A2 conducted a search, which at the most could be termed as "vexatious". It is argued that although it was conducted in a bona fide manner but if there was any inconvenience to anyone, it would have been punishable under Section 22 of the Central Excise Act, 1944. It is argued by Ld. Defence counsel that in view of paras 2.3 and 2.4, as quoted above, no search warrant was required for conducting the search in question.
109. I have considered the submissions of Ld. Defence counsel. It would require appreciation of evidence to reach to a conclusion as to whether it is simply a case of a vexatious search. If it simply turns out to be a case of vexatious search, I would agree with Ld. Defence counsel that accused would be required to be acquitted. Hence, presently this question is kept open and would be decided in later part of the judgement.
5. Whether there is any defect in proving certificates under Section 65B of Indian Evidence Act by PW4
110. PW4 Anuj Bhatia, the Nodal Officer, Vodafone CC No. 19/13 Page No. 78 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 Mobile Services, testified that as a Nodal Officer he is heading the department dealing with the matters where requests are received from various investigating agencies for obtaining call records and Customer Application Form. He proved the ProductioncumSeizure Memo dated 18.01.2012 vide which various original Customer Application Forms in respect of various persons including A1 and A3 regarding mobile phone no. 9899426957 and 9899016666, respectively, were handed over to the Investigating Officer. Since these are the original documents with annexures, which are photocopies available in record, no certificate under Section 65B of Indian Evidence Act is required to prove the same.
111. It appears that the objection of Ld. Defence counsel is nonexhibition of the certificates under Section 65B of Indian Evidence Act. I disagree with the same. D61 is a certificate under Section 65B of Indian Evidence Act in respect of the call details of mobile phone numbers 9899016666, 9582000505, 9811602221, 9899426957, 9811697334 and 9999919999 and the same is Ex.PW4/J. This is sufficient compliance of the provisions under Section 65B of Indian Evidence Act.
CC No. 19/13 Page No. 79 of 140CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 Details of Intercepted Calls and Transcriptions
112. The CD containing all the intercepted calls has been proved by PW15 as Ex.P1. I would like to tabulate the relevant intercepted calls as under :
Call Exhibit Call No. Detail No. 01 PW9/PB Call no. 1, dated 23.12.2011, time at 12:13:05,
Duration 42 sec. conversation held between Hemant Gandhi (9818517000) and Anup Kumar Srivastava (9899426957) 02 PW9/PB1 Call no. 2, dt. 27.12.2011, time at 12:55:28, duration 32 sec. conversation held between Hemant Gandhi (9818517000) and Anup Kumar Srivastava (1123378637) 03 - Call no. 3, dated 27.12.11, time at 13:42:42, duration 29 sec, Conversation held between Hemant Gandhi (9818517000) and Ashok Aggarwal (9811697334) 04 PW 2/PX4 Call no. 4, dt. 27.12.11, time at 14:32:49, duration 101 Sec, conversation held between Lallan Ojha (9953248659) and Hemant Gandhi (9818517000) 05 - Call no. 5, dated 27.12.11, time16:17:35, duration 101 sec, Conversation held between His Wife (11 25227000) and Hemant Gandhi (9818517000) 06 PW 2/PX5 Call no. 6, dt. 27.12.11, time at 18:06:28, duration 47 Sec, conversation held between Lallan Ojha (9953248659) and Hemant Gandhi (9818517000) 07 PW 2/PX6 Call no. 7, dt. 27.12.11, time at 18:23:36, duration 29 Sec, conversation held between Hemant Gandhi (9818517000) and Lallan Ojha (995324P8659) 08 Not proved Call no. 8, dated 27.12.11, time 18:24:16, duration 48 sec, Conversation held between Hemant Gandhi (9818517000) and His Wife (1125223000) CC No. 19/13 Page No. 80 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 09 Not proved Call no. 9, dated 27.12.11, time 18:31:06, duration 31 sec, Conversation held between His Wife (11 25223000) and Hemant Gandhi (9818517000) 10 Not proved Call no. 10, dated 27.12.11, time 19:02:49, duration 61 sec, Conversation held between Hemant Gandhi (9818517000) and His Wife (1125223000) 11 Not proved Call no. 11, dated 27.12.11, time 19:09:03, duration 32 sec, Conversation held between Khurana (9999919999) and Hemant Gandhi (9818517000) 12 PW 2/PX7 Call no. 12, dt. 28.12.11, time at 07:20:25, duration 72 Sec, conversation held between Hemant Gandhi (9818517000) and Lallan Ojha (9953248659) 13 PW 2/PX8 Call no.13 dt. 28.12.11, time at 07:56:00, duration 70 Sec, conversation held between Lallan Ojha (9953248659) and Hemant Gandhi (9818517000) 14 PW 2/PX8 Call no.14, dt. 28.12.11, time at 08:19:07, duration 222 Sec, conversation held between Lallan Ojha (9953248659) and Hemant Gandhi (9818517000) 15 PW 2/PX10 Call no. 15, dt. 28.12.2011, time at 08:28:21, duration 207 Sec. conversation held between Lallan Ojha (9953248659) and Hemant Gandhi (9818517000) on 28.12.11 16 PW 2/PX11 Call no. 16, dt. 28.12.2011, time at 09:03:28, duration 289 Sec. conversation held between Lallan Ojha (9953248659) and Hemant Gandhi (9818517000) on 28.12.11 17 PW 2/PX12 Call no. 17, dt. 28.12.2011, time 09:48:33, duration 133 sec. conversation held between Hemant Gandhi (9818517000)and Lallan Ojha (9953248659) on 28.12.11 18 PW 2/PX13 Call no. 18, dt. 28.12.2011, time 09:58:24, duration 113 sec. conversation held between Lallan Ojha (9953248659) and Hemant Gandhi (9818517000) on 28.12.11 19 PW 2/PX14 Call no. 19, dt. 28.12.2011, time 10:59:29, duration 43 sec. conversation held between Lallan Ojha (9953248659) and Hemant Gandhi (9818517000) on 28.12.11 CC No. 19/13 Page No. 81 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 20 PW 2/PX15 Call no. 20, dt. 28.12.2011 , time 11:00:27, duration 69 sec. conversation held between between Lallan Ojha (9953248659) and Hemant Gandhi (9818517000) on 28.12.11 21 Not proved Call No. 21, dt. 28.12.2011, time 11:14:05, duration 64 sec. Conversation between Hemant Gandhi (9818517000) and Ashok Aggarwal (9811697334) 22 Not proved Call no.22, dt. 28.12.2011, time 11:16:18, duration 27 sec. Conversation between Ashok Aggarwal (9811697334) and Hemant Gandhi (9818517000) 23 PW 1/X Call no. 23, dt. 28.12.2011, time 11:16:42, duration 133 sec. conversation held between Amit (9899016666) and Hemant Gandhi (9818517000) 24 PW 1/X1 Call no. 24, dt. 28.12.2011 , time 11:21:34, duration 87 sec. conversation held between Hemant Gandhi(9818517000) and Lallan Ojha (9953248659) 25 PW 1/X2 Call no. 25, dt. 28.12.2011 , time 11:23:22, duration 37 sec. conversation held between Hemant Gandhi(9818517000) and Amit (9899016666) 26 PW 1/X3 Call no. 26, dt. 28.12.2011, time 11:37:09, duration 60 sec. conversation held between Lallan Ojha (9953248659) and Hemant Gandhi (9818517000) 27 PW 1/X4 Call no. 27, dt. 28.12.2011 , time 11:38:26, duration 102 sec. conversation held between Hemant Gandhi (9818517000) and Dileep (9650192981) 28 PW 1/X5 Call no. 28, dt. 28.12.2011, time 11:42:13, duration 48 sec. conversation held between Hemant Gandhi (9818517000) and Anup Kumar Srivastava (1123378637) 29 PW 1/X6 Call no. 29, dt. 28.12.2011, time 11:52:19, duration 51 sec. conversation held between Lallan Ojha (9953248659) and Hemant Gandhi (9818517000) 30 PW 1/X7 Call no. 30, dt. 28.12.2011, time 11:53:20, duration 55 sec. conversation held between Lallan Ojha (9953248659) and Hemant Gandhi (9818517000) 31 PW 1/X8 Call no. 31, dt. 28.12.2011, time 12:02:54, duration 109 sec. conversation held between Hemant Gandhi (9818517000) and Dileep (9650192981) CC No. 19/13 Page No. 82 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 32 PW 1/X9 Call no. 32, dt. 28.12.2011 , time 12:03:54, duration 100 sec. conversation held between Lallan Ojha (9953248659) and Hemant Gandhi (9818517000) 33 PW 1/X10 Call no. 33, dt. 28.12.2011, time 12:05:52, duration 180 sec. conversation held between Hemant Gandhi (9818517000) and Dileep (9650192981) 34 PW 1/X11 Call no. 34, dt. 28.12.2011 , time 12:11:23, duration 82 sec. conversation held between Lallan Ojha (9953248659) and Hemant Gandhi (9818517000) 35 PW 1/X12 Call no. 35, dt. 28.12.2011, time 12:15:36, duration 54 sec. conversation held between Lallan Ojha (9953248659) and Hemant Gandhi (9818517000) 36 PW 1/X13 Call no. 36, dt. 28.12.2011 , time 12:18:53, duration 88 sec. conversation held between Dileep (9650192981) and Hemant Gandhi (9818517000) 37 PW 1/X14 Call no. 37, dt. 28.12.2011 , time 12:20:16, duration 39 sec. conversation held between Lallan Ojha (9953248659) and Hemant Gandhi (9818517000) 38 PW 1/X15 Call no. 38, dt. 28.12.2011 , time 12:23:42, duration 36 sec. conversation held between Lallan Ojha (9953248659) and Hemant Gandhi (9818517000) 39 PW 1/X16 Call no. 39, dt. 28.12.2011 , time 12:24:46, duration 47 sec. conversation held between Lallan Ojha (9953248659) and Hemant Gandhi (9818517000) 40 PW 1/X17 Call no. 40, dt. 28.12.2011 , time 12:31:49, duration 43 sec. conversation held between Lallan Ojha (9953248659) and Hemant Gandhi (9818517000) 41 PW 1/X18 Call no. 41, dt. 28.12.2011, time 12:45:19, duration 69 sec. conversation held between Hemant Gandhi (9818517000) and Dileep (9650192981) 42 PW 1/X19 Call no. 42, dt. 28.12.2011 , time 12:47:52, duration 29 sec. conversation held between Lallan CC No. 19/13 Page No. 83 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 Ojha (9953248659) and Hemant Gandhi (9818517000) 43 PW 1/X20 Call no. 43, dt. 28.12.2011 , time 12:57:42, duration 40 sec. conversation held between Lallan Ojha (9953248659) and Hemant Gandhi (9818517000) 44 PW 1/X21 Call no. 44, dt. 28.12.2011 , time 13:00:44, duration 93 sec. conversation held between Hemant Gandhi (9818517000) and Lallan Ojha (9953248659) 45 PW 1/X22 Call no. 45, dt. 28.12.2011 , time 13:09:39, duration 83 sec. conversation held between Lallan Ojha (9953248659) and Hemant Gandhi (9818517000) on 28.12.11 46 PW 1/X23 Call no. 46, dt. 28.12.2011 , time 13:22:29, duration 99 sec. conversation held between Lallan Ojha (9953248659) and Hemant Gandhi (9818517000) 47 PW 1/X24 Call no. 47, dt. 28.12.2011 , time 13:26:01, duration 60 sec. conversation held between Hemant Gandhi (9818517000) and PA of Commissioner (1123378637) 48 PW 1/X25 Call no. 48, dt. 28.12.2011 , time 13:33:08, duration 206 sec. conversation held between Mehaendra Kapoor (1123379010) and Hemant Gandhi (1125225641) 49 PW 1/X26 Call no. 49, dt. 28.12.2011 , time 13:43:35, duration 89 sec. conversation held between Ashok Aggarwal (9811697334) and Hemant Gandhi (9818517000) 50 PW 1/X27 Call no. 50, dt. 28.12.2011 , time 14:19:47, duration 58 sec. conversation held between Dileep (9560806997) and Hemant Gandhi (9818517000) 51 PW 1/X28 Call no. 51, dt. 28.12.2011 , time 16:12:06, duration 68 sec. conversation held between Anoop Kr Srivastava, his PA (1123378637) and Hemant Gandhi (9818517000) 52 PW 1/X29/1 Call no. 52, dt. 28.12.2011 , time 17:53:09, CC No. 19/13 Page No. 84 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 duration 166 sec. conversation held between Hemant Gandhi (1125225641) and Amit (9899016666) 52 PW 1/X29/2 Call no. 52, dt. 28.12.2011 , time 17:53:09, duration 166 sec. conversation held between Hemant Gandhi (1125225641) and Amit (9899016666) 53 PW1/X30 Call no. 53, dt. 28.12.2011 , time 18:05:24, duration 33 sec. conversation held between Amit (9899016666) and Hemant Gandhi (1125225641) 54 PW1/X Call no. 54, dt. 28.12.2011 , time 20:18:40, 31/1 duration 201 sec. conversation held between Ashok Aggarwal (9811697334) and Hemant Gandhi (9818517000) on 28.12.11 55 PW1/X32 Call no. 55, dt. 29.12.2011 , time 13:19:50, duration 46 sec. conversation held between Hemant Gandhi (9818517000) and Lallan Ojha (9953248659) 56 PW1/X33 Call no. 56, dt. 30.12.2011 , time 08:54:31, duration 138 sec. conversation held between Hemant Gandhi (9818517000) and Lallan Ojha (8130000444) 57 PW1/X34 Call no. 57, dt. 30.12.2011 , time 10:17:37, duration 41 sec. conversation held between Lallan Ojha (8130000444) and Hemant Gandhi (9818517000) 58 PW1/X35 Call no. 58, dt. 30.12.2011 , time 10:28:10, duration 109 sec. conversation held between Lallan Ojha (8130000444) and Hemant Gandhi (9818517000) 59 PW1/X36 Call no. 59, dt. 30.12.2011 , time 10:30:24, duration 39 sec. conversation held between Lallan Ojha (8130000444) and Hemant Gandhi (9818517000) 60 PW1/X37 Call no. 60, dt. 30.12.2011 , time 12:38:06, duration 40 sec. conversation held between Lallan Ojha (8130000444) and Hemant Gandhi (9818517000) 61 PW1/X38 Call no. 61, dt. 30.12.2011 , time 13:08:15, duration 59 sec. conversation held between Hemant Gandhi (9818517000) and Dileep (9560806997) 62 PW 18/A Call no. 62, dt. 30.12.2011 , time 13:59:28, CC No. 19/13 Page No. 85 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 duration 103 sec. conversation held between Dileep (9560806997) and Puneet (9650111775) 63 - Call no. 63, dt. 30.12.2011 , time 14:21:15, duration 357 sec. Covnersation held between Dileep Aggarwal (9560806997) and Pathak (9540050046) 64 PW1/X Call no. 64, dt. 30.12.2011 , time 14:30:30, duration 39/1 153 sec. conversation held between Hemant Gandhi (9818517000) and Kapoor (9810406660) 64 PW1/X Call no. 64, dt. 30.12.2011 , time 14:30:30, duration 39/2 153 sec. conversation held between Hemant Gandhi (9818517000) and Kapoor (9810406660) on 30.12.11 65 PW1/X 40 Call no. 65, dt. 30.12.2011 , time15:12:55, duration 108 sec. conversation held between Lallan Ojha (8130000444) and Hemant Gandhi (9818517000) 66 PW1/X 41 Call no. 66, dt. 30.12.2011 , time 15:59:38, duration 36 sec. conversation held between Dilip Aggarwal (9560806997) and Hemant Gandhi (1145769974) 67 PW1/X 42 Call no. 67, dt. 30.12.2011 , time 17:28:57, duration 27 sec. conversation held between Hemant Gandhi (11 25225641) and Person O/o Commissioner (11 23378637) 68 PW1/X 43 Call no. 68, dt. 30.12.2011 , time 17:31:31, duration 47 sec. conversation held between Hemant Gandhi (11 25225641) and Anup Kumar Srivastava (9899426957) on 30.12.11 69 PW1/X 44 Call no. 69, dt. 30.12.2011 , time 17:48:50, duration 115 sec. conversation held between Hemant Gandhi (1125225641) and Lallan Ojha (8130000444) on 30.12.11 70 PW1/X 45 Call no. 70, dt. 30.12.2011 , time 18:24:38, duration 47 sec. conversation held between Hemant Gandhi (9818517000) and Dileep (9560806997) 71 - Call no. 71, dt. 30.12.2011 , time 18:54:32, duration 118 sec. Coversation between Dileep Aggarwal (9560806997) and Himanshu (9136311838) on 30.12.11.
72 PW 18/B Call no. 72, dated 30.12.2011, time 19:06:44, duration 98 sec, Conversation held between Dilip CC No. 19/13 Page No. 86 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 Aggarwal (9560806997) and Punit (9650111775) 73 PW2/PX/16 Call no. 73, dated 30.12.2011, time 19:23:21, duration 148 sec, Transcription of conversation held between Lallan Ojha (9811602221) and S.K.Singh (9818145883) 74 Call no. 74, dated 30.12.2011, time 19:24:02, duration 29 sec, Conversation held between Dilip Aggarwal (9560806997) and Anand Aggarwal (9711420824) PW 1/X/46 Call no. 75, dated 30.12.2011, time 19:34:08, 75 duration 29 sec, Conversation held between Hemant Gandhi (9818517000) and Dileep (9560806997) 76 - Call no. 76, dated 30.12.2011, time 19:34:42, duration 23 sec, Transcription of conversation held between Anand Aggarwal (9818517000) and Dilip Aggarwal (9560806997) 77 PW1/X/47 Call no. 77, dated 30.12.2011, time 19:39:23, duration 30 sec, Transcription of conversation held between Lallan Ojha(8130000444) and Hemant Gandhi (9818517000) 78 PW1/X/48 Call no. 78, dated 30.12.11 , time 19:46:16, duration 200 sec, Transcription of conversation held between Lallan Ojha (8130000444) and Hemant Gandhi (9818517000) 79 - Call no. 79, dated 30.12.11, time at 20:43:03, duration 228 sec, conversation between Dileep Aggarwal (9560806997) and Anand Aggarwal (9711420824) 80 PW2/X/17 Call no. 80, dated 31.12.11, time at 10:37:58, duration 78 sec, Conversation held between Lallan Ojha (8130000444) and Hemant Gandhi (9818517000) 81 PW1/X/49 Call no. 81, dated 31.12.11, time 10:40:06, duration 55 sec, Transcription of conversation held between Lallan Ojha (8130000444) and Hemant Gandhi (9818517000) 82 - Call no. 82, dated 31.12.11, time at 10:45:19, duration 356 sec, conversation between Dileep CC No. 19/13 Page No. 87 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 Aggarwal (9560806997) and Anand Aggarwal (8860752486) 83 PW2/PX18 Call no. 83, dated 31.12.11, time at 21:12:37, duration 237 sec and conversation held between Balwan (8295738558) and Lallan Ojha (9811602221) 84 PW1/X/50 Call no. 84, dated 01.01.12, time at 15:19:47, duration 87 sec, Conversation held between Hemant Gandhi (9818517000) and Lallan Ojha (8130000444) 85 PW2/PX19 Call no. 85, dated 01.01.12, time at 18:23:42, duration 74 sec, Conversation held between Lallan Ojha (8130000444) and K. N. Srivastava (9953248659) 86 PW2/PX20 Call no. 86 dated 01.01.12, time at 19:44:08, duration 89 sec, Transcription of conversation held between Lallan Ojha (8130000444) and K. N. Srivastava (9953248659) 87 PW2/PX21 Call no. 87, dated 01.01.12, time at 23:01:07, duration 178 sec, Conversation held between Lallan Ojha (8130000444) and K. N. Srivastava (9953248659) 88 PW 1/A Call no. 88, dated 02.01.12, time at 11:45:06, duration 48 sec, Conversation held between Hemant Gandhi (9910973978) and Lallan Ojha (8130000444) 89 PW 2/PX Call no. 89, dated 02.01.12, time at 11:46:29, duration 23 sec and conversation held between Lallan Ojha (8130000444) and Dileep(Driver)(9599623528) 90 PW 2/PX22 Call no. 90, dated 02.01.12, time at 11:47:21, duration 57 sec, Conversation held between Lallan Ojha (8130000444) and Hemant Gandhi (9818517000) 92 PW 1/B Call no. 92, dated 02.1.12, time at 11:48:42, duration 37sec, Conversation held between Lallan Ojha (8130000444)) and Driver of Hemant Gandhi (9910973978) 93 PW 2/PX1 Call no. 93, dated 02.01.12, time at 11;49:37, duration 22 sec, Conversation held between Lallan Ojha (8130000444) and Dileep(Driver) (9899623528) 94 PW 2/PX2 Call no. 94, dated 02.01.12, time at 11:50:16, durartion 100 sec,Conversation held between Lallan CC No. 19/13 Page No. 88 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 Ojha (8130000444) and Dileep(Driver)(9899623528) 95 PW 1/C Call no. 95, dated 02.01.12, time at 11:52:17, duration 54 sec, Conversation held between Lallan Ojha (8130000444) and Driver of Hemant Gandhi (9910973978) 96 PW2/PX3 Call no. 96, dated 02.01.12, time at 12:10:58, duration 25 sec, Conversation held between Lallan Ojha (8130000444)) and Dileep(Driver)(9899623528)
113. It is necessary to mention here that all the intercepted calls have been proved by PW15 as contained in the CD Ex.P1. However, specific exhibit number has been given to various calls, during recording of evidence with a view to identify as to which witness has identified the relevant voice in the intercepted calls. Therefore, even if a specific exhibit number is not given to a specific call in the above chart, still the same stands proved collectively as Ex.P1 and where exhibits numbers have been given, it means that particular witness has also identified the voice of the speaker.
114. The CDRs are contained in the CD Ex.PW4/K, were seen by me on the laptop and compared it with the particulars mentioned above the transcripts (D67), which were found to be correct except that the time mentioned in the CDRs is a bit different in terms of "seconds" as compared to the intercepted calls details mentioned in the transcript and appearing in Annexure 'A', proved by PW15. It is natural CC No. 19/13 Page No. 89 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 because the calls were intercepted on a different computer / voice logger, whereas, the timing of the calls were recorded in the CDRs on a different system.
115. All the intercepted calls (except which are mentioned in bold and underlined serial numbers) are not found in the CDR Ex.PW4/K.
116. Calls No. 62, 72 (CDR Ex.PW17/J, D49), Call No. 64 (CDR Ex.PW17/K, D50) and Calls No. 89, 93, 94 & 96 (CDR Ex.PW4/N, D63) are clearly reflected in these CDRs.
117. The CDRs have been proved alongwith their certificates under Section 65B of Indian Evidence Act by PW 17 and PW4, respectively.
118. I may further mention that PW1 Rajesh Verma, driver of Hemant Gandhi and PW2 Dilip, driver of Lallan Ojha have testified of having conversation with Lallan Ojha and Hemant Gandhi on their mobile phones and have thus, proved not only the intercepted calls no. 88 to 96, but have also identified their own voices as well as voices of Lallan Ojha and Hemant Gandhi in all the intercepted calls contained in Ex.P1.
CC No. 19/13 Page No. 90 of 140CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016
119. Though the CDR's of Calls No. 2, 27, 28, 31, 33, 36, 41, 47, 48, 50, 51, 56, 57, 58, 59, 60, 61, 65, 66, 67, 70, 75, 77, 78, 80 and 81 were not proved and were filed by prosecution just a few days before announcement of this judgement, but even without these CDRs, I am of the opinion that prosecution has proved the same beyond reasonable doubt by proving intercepted calls through PW15, who also proved all the details of intercepted calls. The respective voices in these calls are further proved to be those of the accused persons and witnesses. Moreover, when most of the calls are supported by CDRs, this court can safely presume the correctness of all the particulars of the calls mentioned in Annexure 'A' as well as the contents of intercepted calls (Ex.P1), proved by PW15.
6. Whether the integrity of the intercepted calls has been maintained
120. PW15 M. C. Kashyap has testified that he provided 96 intercepted calls in a CD (Ex.P1, which is also marked as Q1) to Insp. Deepak Purohit, the Investigating Officer on 06.01.2012, vide Seizure Memo, Ex.PW15/A, (D
20) alongwith recorded call information report in a sealed packet. Perusal of this Seizure Memo also shows that M. C. CC No. 19/13 Page No. 91 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 Kashyap handed over one sealed packet containing 96 recorded calls, two system files and Words RCAC12012A 0001CBI, which is duly signed by M. C. Kashyap, DSP. The CD shows the signatures of M. C. Kashyap, which PW15 M. C. Kashyap had identified at point 'X'. I would like to refer to the Seizure Memo Ex.PW15/A, in which it is specifically mentioned that the CD was sealed in an envelope and on the Seizure Memo specimen of the seal affixed was also given . The Seizure Memo Ex.PW15/A shows the specimen of seal available on it.
121. As per the testimony of PW37 Ram Singh, DSP, the CD was sent to CFSL by Investigating Officer to Director, CFSL for obtaining expert opinion.
122. Now, I refer to the testimony of Dr. Rajender Singh, the Director, CFSL, Government of India, New Delhi, who testified as under :
"On 12.01.2012, Physics Division of CFSL received 8 sealed parcels from SP, CBI, ACUI, New Delhi, vide letter no. RC.ACI2012A 0001/CBI/ACUI/New Delhi, dated 12.01.2012. Further, on 30.01.2012, another sealed parcel was received from SP/CBI, ACUI, New Delhi vide letter no. 211/RCACI2012A0001, dated 30.01.2012. The parcel was sealed with the seal of CBI and I found them in intact condition after comparing with the specimen seal forwarded by the Investigating Officer. These parcels were marked by me as Exhibit as Q1, S1 to S8. The Exhibit Q1 found to be contained a CD stated to have questioned recorded conversation of Smt. Reena Gandhi, Sh. Rajesh Verms, Sh.CC No. 19/13 Page No. 92 of 140
CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 Hemant Gandhi, Sh. Lallan Ojha, Sh. Dilip Aggarwal, Sh. Anand Kumar Aggarwal, Sh. Delip Kumar Yadav and Sh. Anup Kumar Srivastava. The Exhibits S1 to S8 found to be containing a CD stated to be have specimen voice recordings of Smt. Reena Gandhi, Sh. Rajesh Verma, Sh. Hemant Gandhi, Sh. Lallan Ojha, Sh. Dilip Aggarwal, Sh. Anand Kumar Aggarwal, Sh. Delip Kumar Yadav and Sh. Anup Kumar Srivastava."
123. This testimony proves that the CD duly sealed with the seal of Special Unit of CBI was received by CFSL.
124. Now, I would like to reproduce the relevant portion of the report Ex.PW16/A (D68), in which the description of the parcels received by CFSL have been mentioned, as under :
"5. Details of parcels and seals ..........
Received another forwarding memo on 12.01.2012 from the Supdt. Of Police, CBI, ACUI, New Delhi vide No. 85/RC AC1 2012 A0001 Dated 11012012 along with eight sealed parcels including 'Q1' & 'S3', specimen seal impressions of "CBI SU NEW DELHI" in wax and ink affixed on a white paper sheet and "CBI RS" in ink affixed on a another white paper sheet. The seals on the parcels were tallied with specimen seal impression and found intact.
The parcel marked 'Q1' is a yellow colored sealed paper envelope bearing four seals of "CBI SU NEW DELHI". It contained a compact disc marked exhibit Q1."
125. The above referred evidence proves beyond doubt that the CD, which was sealed with the seal of SU CBI CC No. 19/13 Page No. 93 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 reached intact to CFSL. Now, let us see as to with what seal CFSL sealed the CD Ex.P1 (Q1). I refer to the concluding portion of the CFSL report Ex.PW16/B (D69) as under :
"NOTE :
(a) ......
(b) The compact discs marked exhibits 'Q1', 'S1', 'S2', 'S3', 'S4',
'S5', 'S6' & 'S7' were rechecked for continuity of original sound and found in order and these were returned to the forwarding authority along with their original packing and sealed with the seals of "AD PHY CFSL CBI NEW DELHI".
126. Now, I would see as to in what condition the CD reached the court.
127. The envelope containing CD was first of all opened at the time of examination of PW1 and my Ld. Predecessor observed as under :
"At this stage a sealed envelope sealed with the seal of CFSL Ex.Q1 containing the marking CFSL2012/P39, RC AC1 2012 A0001/CBI/ACU I/N.D has been produced. The said envelope is ordered to be opened. It contains an envelope in open condition bearing marking RC AC1 2012 A0001/CBI/N.D( MR134/12) and one CD bearing the same RC number and CFSL2012/P0039 Ex. Q1 alongwith its cover. There are two signatures on this CD one is dated 6.1.2012 and second is dated 17.02.2012. It is also mentioned on the CD "96 Calls". Ld. Sr.PP has requested permission to play call numbers 88, 92 and 95. The transcription CC No. 19/13 Page No. 94 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 of the same is given in document no. D67."
128. Thus, when the envelope containing CD Ex.P1 was opened in the court during testimony of PW1, it was sealed with the seal of CFSL.
129. Therefore, prosecution has proved to the hilt the integrity of the electronic evidence in form of intercepted calls contained in CD Ex.P1 (Q1).
130. Ld. Defence counsels have pointed out that there is possibility of tampering the electronic evidence when PW 15 segregated the 96 calls. It is submitted that it is at the stage that the CBI could have manipulated the contents of the intercepted calls and therefore, the contents of the CD containing 96 calls should be rejected. I disagree with this submission. The provision of Section 65B of Indian Evidence Act is meant to rule out the possibility of such tampering electronic evidence. I do not find any reason as to why CBI would deliberately try to create false evidence against the accused persons. Perusal of testimony of PW15 shows that the witness has explained the entire process of intercepting and segregating the calls in a CD, which is worthy of credence. He has also furnished the certificate under Section 65B of Indian Evidence Act and a report of the mobile phones CC No. 19/13 Page No. 95 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 calling and called, their duration, time and date. Therefore, I am of the opinion that the integrity of the electronic evidence in question has been vouche safed.
7. Intercepted mobile phones/ landlines
131. PW15 has proved his certificate under Section 65B of Indian Evidence Act as Ex.PW15/G (D26) and he has annexed as Annexure 'A' all the details of named recorded call file, date of recording on computer system, time of recording on computer system and the intercepted phone number. I would like to reproduce the same as under :
CC No. 19/13 Page No. 96 of 140CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 CC No. 19/13 Page No. 97 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 CC No. 19/13 Page No. 98 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016
8. Crux of the above discussion
132. The result of above discussion can be summed up as under :
(i) Prosecution has successfully proved any possibility of tampering of the intercepted calls CC No. 19/13 Page No. 99 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 contained in CD Ex.P1.
(ii) The calls were intercepted after due authorization.
(iii) Particulars of the intercepted calls of the mobile phones have been proved by PW15 by way of proving Annexure 'A'.
(iv) Most of these intercepted calls, as already discussed, are supported with CDRs. Although, some of the CDRs were not proved but CBI has filed the same just a few days before the judgement, which I have not taken into consideration, but atleast it proves the intention of CBI that it was not deliberately withholding of the evidence.
(v) The speakers in the intercepted calls have been proved by prosecution by examining voice expert. His report remains unimpeached.
(vi) PW1 and PW2 have identified the voice of Lallan Ojha. PW1 has identified the voice of Hemant Gandhi and PW2 has identified the CC No. 19/13 Page No. 100 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 voice of Lallan Ojha in all the calls. PW18 Puneet Mittal has identified his own voice in Calls No. 62 and 72. He did not identify the voice of Dilip Aggarwal for the obvious reason of his employee/salesman. However, it is already proved that he was talking to mobile phone no. 9560806997, which belongs to Dilip Aggarwal. Moreover, voice of Dilip Aggarwal is proved by the expert.
(vii) As per the report of voice expert, the respective voices in the intercepted calls matched with Dilip Aggarwal and Anand Aggarwal.
(viii) Prosecution has also proved (as indicated in the charge in earlier part of judgement) as to who was the owner / user of which phone.
133. All this evidence is so overwhelming that it is not possible to reject the calls, of which CDRs have not been proved by prosecution.
9. Whether the money belongs to the wife of A2
134. A2 has examined his wife Smt. Shashi Ojha CC No. 19/13 Page No. 101 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 (A2/DW1) in his defence. I have already reproduced her entire evidence in earlier part of the judgement. It is argued by Sh. V. K. Ohri, Ld. Defence counsel that the recovery of Rs.3,46,500/ was not from Lallan Ojha (A2) and it was from car of his wife, which has come to hand over lunch to accused. It is further argued that CBI itself says so in charge sheet. It is further submitted that the explanation of Rs.3,46,500/ given by defence witness i.e. wife of Lallan Ojha (A2) has gone unchallenged, which clearly establishes that the amount so recovered belongs to the company of the wife of accused Lallan Ojha (A2) and her niece. It is further argued that amount of Rs.3 lacs as alleged by CBI was not found from the car of the accused's wife which CBI has failed to explain. It is further argued that the CBI intentionally did not take the finger prints from the packet recovered from the car containing Rs.3,46,500/ kept by accused's wife and also no finger prints from currency notes were taken and the currency notes so recovered were neither shown to both the drivers PW1 and PW2 nor they were confronted with each other during investigation by CBI to prove its case.
135. On the other hand, Ld. Senior Public Prosecutor has drawn my attention to the testimony of PW1 Rajesh CC No. 19/13 Page No. 102 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 Verma, who is the driver of Hemant Gandhi (A3) as well as testimony of PW2 Dilip Kumar Yadav, the driver of Lallan Ojha (A2).
136. I would like to refer to the evidence of PW1 and PW2.
137. PW1 Rajesh Verma testified that on 02.01.2012, Hemant Gandhi (A3) had handed over to him a sum of Rs.3 lacs to deliver the same to Mr. Lallan Ojha (A2) at his ITO office. He testified that Hemant Gandhi (A3) had also given him the phone number of Lallan Ojha (A2). At around 09:00 a.m. - 09:30 a.m., he left Punjabi Bagh residence of Hemant Gandhi (A3) for ITO. He further testified that after arriving at ITO, he called from him mobile phone number 9910973878 to Mr. Lallan Ojha on his phone number. However, Lallan Ojha (A2) informed him that he was not in the office and directed PW1 to hand over the money to his driver. PW1 further testified that he had carried Rs.3 lacs in a polythene bag. Lallan Ojha (A2) gave mobile phone number of PW1 to his driver. PW1 further testified that he received a call from the said driver and then came in car Chevrolet Beat of white colour bearing no. 7101. Driver of Lallan Ojha (A2) parked the car behind the car of PW1 and called his name CC No. 19/13 Page No. 103 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 "Rajesh". PW1 testifies that therefore, he recognized him and handed over polythene bag containing Rs.3 lacs to driver of Lallan Ojha. PW1 also identified his voice as well as the voice of Lallan Ojha (A2) in the intercepted calls.
138. Sh. V. K. Ohri, Ld. Defence counsel has drawn my attention to the crossexamination of PW1 by accused Hemant Gandhi (A3). In this crossexamination, it is stated by PW1 that he was not aware of the contents of the polythene packet because he never used to open the packets. It is, therefore, argued that there is no evidence to show as to what was delivered by PW1 to PW2. I disagree with this submission, of Ld. Defence counsel. The aforesaid reply of PW1 is in respect of the gifts, which used to be delivered by him on behalf of Hemant Gandhi (A3) to his friends and officers at the time of festivals Dussera, Diwali and New Year. This testimony is not in respect of the money carried by him in polythene bag for Lallan Ojha (A2).
139. Now, I take up the evidence of PW2 Dilip Kumar Yadav. He testified that at the relevant time he was working as a driver of Lallan Ojha (A2) and was possessing a mobile phone number of 9899623528, which was given to him by accused Lallan Ojha and it belonged to his previous driver. He CC No. 19/13 Page No. 104 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 stated that he did not remember the complete mobile phone number of Lallan Ojha but last digits were 0000444. He testified that on 28.12.2011, he brought Lallan Ojha (A2) from his house to CR Building. From CR Building, one person joined him in the car and then they went to Rama Road. Lallan Ojha got down from the car and went somewhere. After two hours, Lallan Ojha came back alongwith the same person and then went to CR Building. Thereafter, he drove Lallan Ojha to his house.
140. PW1 further testified that on 02.01.2012, he took meals for Lallan Ojha to CR Building, one laptop was also taken by him alongwith meals. He parked the car in the parking at about 11:00 a.m. He received a call from Lallan Ojha (A2) and PW2 told him his location in the parking. PW2 received further calls from Lallan Ojha (A2), who gave him a mobile phone number. On instructions by Lallan Ojha (A2), PW2 reached at a juice shop on the main road. Lallan Ojha (A2) had told him that one person would be handing over a packet and that PW2 should keep it in the car. Accordingly, PW2 drove the car outside main road near juice shop and waited there.
141. PW2 further testified that one person came from CC No. 19/13 Page No. 105 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 opposite direction and gave three packets and asked him to count the same. PW2 further testified that the said person told him that these packets contained Rs.3 lacs. PW1 told him (PW2) to keep the packets in the car of which PW2 was driver. PW2 further testifies that these packets were put by that person on the front seat adjoining the driver seat. These three packets were in red colour thaila of some saree shop.
142. PW2 further testified that thereafter he drove to the parking of CR Building and sat alongwith other drivers in the parking. When PW2 was in parking, Lallan Ojha (A2) called him and asked him if he had met the person concerned. Thereafter, the CBI officials came to him and on their asking, PW2 told him that the car belonged to Lallan Ojha (A2). PW2 also told them that three packets were lying in the car. In the meantime, accused Lallan Ojha was also brought near the car. The red colour thaila was opened and it was found to contain currency notes of Rs.1,000/ and Rs.500/ denominations. He testified that the said amount was counted and found to be Rs.3500/ less than Rs.3 lacs.
143. The entire testimony of PW2 makes it clear that Hemant Gandhi (A3) had sent the money (i.e. around Rs.3 CC No. 19/13 Page No. 106 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 lacs) through PW1, which was handed over to PW2 at the instructions of Lallan Ojha (A2). PW2 has specifically denied the suggestion of Ld. Defence counsel that Lallan Ojha (A2) informed the CBI officials that the money was sent by his wife.
144. PW2 has survived a long crossexamination by Ld. Defence counsels, but his testimony remained unimpeached. Although a few contradictions have been pointed out by Ld. Defence counsels in examinationinchief, statement under Section 161 Cr.PC and his statement under Section 164 Cr.PC. However, the same are extremely minor in nature and do not cast any shadow on the overall veracity of the testimony of PW2.
145. Smt. Shashi Ojha (A2/DW1) has testified that she had kept a sum of Rs.3 lacs in a bag alongwith Rs.50,000/. She testified that an amount of Rs.50,000/ was to be deposited in AIIMS for treatment of her niece, whereas, she had kept Rs.3 lacs to make the payments to the worker and to buy raw material for the factory.
146. I am of the opinion that she is simply trying to CC No. 19/13 Page No. 107 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 save her husband. Testimony of PW2 that it was a money given to him by PW1, is fully supported by the testimony of PW1. There is no reason as to why these two drivers would testify falsely. It must be kept in mind that PW2 was the driver of Lallan Ojha (A2) himself and his loyalty more towards his employer than CBI. He would not support the prosecution case unless it is true. Further, the intercepted telephonic conversation by PW1 with Lallan Ojha (A2) and conversation by PW2 with Lallan Ojha (A2) during this event have been identified by them. Hence, additional corroboration is brought on record by prosecution, which proves that PW1 brought an amount of approximately Rs.3 lacs from Hemant Gandhi (A3) and as per the instructions on mobile phone, PW1 handed over the said amount to PW2. Testimony of PW2 and his conversation with Lallan Ojha (A
2) on mobile, which is duly identified by him, further proves that PW2 had received the amount of approximately Rs.3 lacs from PW1 at the instructions of Lallan Ojha (A2).
147. Thus, the testimony of PW1 and PW2 is worthy of credence and is fully corroborated by the intercepted calls. In view of such authentic evidence, this court has no option but reject the testimony of Smt. Shashi Ojha (A2/DW1).
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10. Whether there is no demand of money by Lallan Ojha (A2)
148. Sh. V. K. Ohri, Ld. Defence counsel for A2 has argued that there is no demand on part of Lallan Ojha (A2).
149. I disagree with his submissions. All the intercepted calls proved that A2 alongwith his teammates with active assistance of Hemant Gandhi (A3) entered the premises of Anand Aggarwal (A5) and cornered and compelled him to pay money. As per Call No. 80, Ex.PW2/PX 17, Lallan Ojha (A2) is asking Hemant Gandhi (A3) on 31.12.2011 to bring 2 or 3. It can be inferred that it is an amount of Rs.2 lacs or Rs. 3 lacs.
150. As per Call No. 90, dated 02.01.2012, Ex.PW2/PX22, Lallan Ojha is asking as to how much has been brought by the driver. Hemant Gandhi (A3) replies that the same 3. It can be inferred to be an amount of Rs.3 lacs, which is proved by the recovery of the said amount on that very day i.e. 02.01.2012.
151. Ld. Senior Public Prosecutor further submits that the Call No. 94, dated 02.01.2012 at 11:50 a.m. Ex.PW2/PX2 [also reflected in CDRs Ex.PW4/N (Colly.)], Lallan Ojha (A2) CC No. 19/13 Page No. 109 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 is asking Dilip (PW2), the driver of Lallan Ojha (A2), in which Lallan Ojha is informing the car number of Hemant Gandhi being driven by PW1 and also telling him that the said person will give him three packets. I am left in no doubt that Lallan Ojha (A2) is informing his driver Dilip (PW2) that the driver of Hemant Gandhi will deliver Rs.3 lacs to him.
152. This should be seen in the background that in the intercepted call no. 62 (Ex.PW18/A), accused Dilip Aggarwal (mobile phone no. 9560806997) is talking to one Puneet (PW18) (mobile phone no. 9650111775) that somehow Rs.3 lacs should be arranged within one hour. He also tells Puneet (PW18) that he had put 20 in the plastic bag. PW 18 had turned hostile but in his crossexamination by Ld. Senior Public Prosecutor, he had admitted his mobile phone number and his own voice in the conversation of the intercepted calls. Although, he could not identify the voice of accused Dilip Aggarwal, however, since the CDR [Ex.PW17/J (Colly.)](at page no. 138 of D49) proved that there was a call between two phone numbers i.e. mobile phone number 9650111775 (i.e. of Puneet) and 9560806997 (i.e. of Dilip Aggarwal), it stands proved that the conversation is between CC No. 19/13 Page No. 110 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 these two persons. The intercepted call was played and Ld. Prosecutor specifically put a question that in this conversation, he was being asked to make arrangement of bribe amount. To this question, he replied that he did not remember and that it is possible that he might have been asked to collect the payment of sales. I disagree with this reply of PW18, who is testifying simply to save his employer. If the aforesaid conversation is considered in backdrop of the entire scenario, which is reflected from the cumulative reading/ hearing of all the intercepted calls, it is clear that Dilip Aggarwal is desperate to arrange Rs.3 lacs. Dilip Aggarwal also stated in this call that Rs.20 lacs has been delivered.
153. These conversations are dated 30.12.2011 and can be easily connected with the search in question.
154. Call No. 72 (Ex.PW18/B) dated 30.12.2011 is also between the said two persons, namely PW18 and A4, in which A4 is asking as to whether Hemant has come and thereafter, telling him to give Hemant immediately some 20 after packing it. Thereafter, at point 'A' Dilip asks to collect remaining 25. Although, PW18 was confronted with Call No. 72, and PW18 stated that he did not recollect and that he CC No. 19/13 Page No. 111 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 might be asked to collect the payment of sales. I may point out that particulars of this call also match with the CDR Ex.PW17/J (Colly.) (at page 139 of D49). Thus, it is clear that money is being demanded by Lallan Ojha (A2) from A5 directly as well as through Hemant Gandhi (A3).
11. Cheque of Rs.20 lacs
155. Cheque No. 263085, dated 05.01.2012 for a sum of Rs.20 lacs, Ex.PW27/C (D6) drawn in the name of "Self" on ING Vysya Bank Ltd., Kirti Nagar Branch, New Delhi, was seized by Insp. Surender Pahari, vide Memo Ex.PW27/B (Annexure to Arrest Memo), from the personal search of accused Hemant Gandhi (A3).
156. PW27, Prem Lal Kukreti, the LDC in the office of Executive Engineer (Building), Central Zone, Lajpat Nagar has proved the recovery of this cheque in his presence.
157. Accused Anand Aggarwal (A5) has admitted in his statement under Section 313 Cr.PC that he was called by CBI officers on 02.01.2012 and his cheque book was taken after getting the cheque book filled and counterfoil being written by him. This plea is patently false and afterthought because when PW27 was examined, A5 did not put to him CC No. 19/13 Page No. 112 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 that the cheque was an unsigned cheque at the time of recovery or that the cheque was never recovered from Hemant Gandhi (A3). It is pertinent to note that in the memo Ex.PW27/B it is specifically written that it was signed by Sh. Anand Kumar Aggarwal i.e. A5.
158. In this regard, it is necessary to mention that DSP Ram Singh, the Investigating Officer of this case recovered vide recovery memo Ex.PW37/J (D78), one cheque book of account no. 588010019800, in the name of Anand Aggarwal. Perusal of this cheque book shows that on the transaction sheet in the cheque book, last entry dated 05.01.2012 shows the cheque no. (2630)85 amounting to Rs.20,00,000/ issued in the name of "Self" and given to Hemant Gandhi as security for Excise Officers. As per the statement of A5 CBI got this entry from him under pressure during investigation. I disagree with this submission. The memo shows that the various documents including the present cheque book was handed over by A5 to the Investigating Officer. Furthermore, the Investigating Officer had not arrested this accused, therefore, it can be safely presumed that A5 could not have been forcibly compelled to write this entry in the transaction sheet of the cheque book. The fact that the actual cheque of CC No. 19/13 Page No. 113 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 Rs.20 lacs was found in the possession of Hemand Gandhi, who was in constant touch with Excise Officers further proves the correctness of the entry in the transaction sheet.
12. The intercepted calls in respect of the cheque
159. In Call No. 60 (no CDR) (Ex.PW1/X37), Lallan Ojha (A2) (mobile phone no. 8130000444) is asking Hemant Gandhi (mobile phone no. 9818517000) to take the cheque and tell that "do taarikh tak mil lena chahiye otherwise paanch percent ke roz se hisaab lenge hum" (i.e. must get it by second of the month, otherwise five percent interest per day would be charged).
160. Call No. 64, dated 30.12.2011, Ex.PW1/X39/1, at time 14:30:30, is a conversation between Hemant Gandhi (mobile phone no. 9818517000) and Mahender Kapoor (mobile phone no. 9810406660). In this conversation, Mahender Kapoor asks about Lallan Ojha (A2) by referring him as "Lallu Ram". Hemant Gandhi (A3) tells him that cheque will be given. Ld. Senior Public Prosecutor had drawn my attention to the cheque of Rs.20 lacs issued by Anand Aggarwal (A5), which was recovered from Hemant Gandhi (A3). Further, the transaction slip also mentions that this is CC No. 19/13 Page No. 114 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 issued for Excise officers.
161. Call No. 69, dated 30.12.2011, Ex.PW1/X44 between landline 01125225641 and Lallan Ojha (mobile phone no. 8130000444), Hemant Gandhi (A3) informed Lallan Ojha (A2) that the said cheque has come.
162. The fact of recovery of the cheque of Rs.20 lacs (issued by A5) from the possession of Hemant Gandhi (A3), should be seen in the backdrop of the abovementioned conversations specifically as well as in the background of the entire conversations. I am of the opinion that his is enough to believe that the aforesaid cheque was given by A5 to Hemant Gandhi as a security to the promise that this amount would be given to Lallan Ojha later on by A5.
13. Was it a rogue raid?
163. Prosecution has argued that the search operation was totally illegal because no permission of superiors were taken nor they were informed nor they acted pursuant to any search warrant. In order to proved this allegation, prosecution has examined Pradeep Kumar (PW9), the then Additional Commissioner, Anti Evasion, Central Excise, New Delhi01. He testified that whenever intelligence regarding CC No. 19/13 Page No. 115 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 the evasion of Central Excise duty is received and developed, same is put up for authorization of search before competent authority i.e. Joint Commissioner/ Additional Commissioner for scrutiny of intelligence and if there is reasonable belief that some documents or things are secreted at the premises, then the search warrants are issued. He testified that intelligence is developed by Inspectors and Superintendent of Central Excise and it is verified by them and then the secret verification of premises is carried out by Inspectors and Superintendents of Central Excise. He further testified that the search warrants are issued for the premises which are not registered with Central Excise or where there is a possibility of secretion of private documents even in registered premises. He further testified that authorization of visit is only for registered premises. He further testified that in both cases written permission is required. In cross examination he stated that specific search was planned for 28.12.2011 in case of M/s Ankita Electrodes and the officers were called at 10:00 a.m. on that day by Deputy Commissioner, Anti Evasion.
164. PW11, B. Mohan Reddy, the then Deputy Commissioner, Anti Evasion, Central Excise, Delhi1, testified CC No. 19/13 Page No. 116 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 that as per the intelligence developed by Inspectors and Superintendents, a secret verification of premises is carried out by them. Thereafter, the search warrants are issued for the premises, which are not registered with Central Excise and authorization of visit is issued for the registered premises. In both the cases, written permission is required. In crossexamination, he testified that the godown of Anand Agarwal (A5) is not registered with Central Excise and that if it is not registered with Central Excise, it will not come within the jurisdiction of Central Excise. In cross examination by Sh. S. K. Rungta, Ld. Senior Advocate, he stated that in case of premises / godown of Anand Aggarwal (A5), no proposal was put to Commissioner for carrying out the raid/ search on 28.12.2011, nor any approval was given by him. In crossexamination, he admitted that as per Clause 9 (iv) of Chapter2 of the Central Excise, Intelligence and Investigation Manual issued by Directorate General of Central Excise, Intelligence, officers of all the ranks are encouraged to have their own sources of information. PW11 denied the suggestion on behalf of Lallan Ojha (A2) that K. N. Srivastava, who was posted in Anti Evasion Branch as Inspector on 28.12.2011, had informed him (i.e. PW11) about the visit to the godown of Anand Aggarwal (A2). It is CC No. 19/13 Page No. 117 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 relevant to note here that in crossexamination by Sh. Rakesh Kumar Sharma, Advocate for A4 and A5, PW11 testified that on 28.12.2011, an office order was issued for all the officers of Anti Evasion Branch to remain present on 28.12.2011 and that the search was conducted at premises of M/s Ankita Electrodes on 28.12.2011. He further testified that no other search warrant or authorization other than on M/s Ankita Electrodes was issued for 28.12.2011. PW11 further testified that a team was constituted in the morning of 28.12.2011, but Lallan Ojha (A
2), S. K. Singh and K. N. Srivastava were not present at the scheduled time i.e. 10:00 a.m. on 28.12.2011.
165. The testimony of PW9 & PW11 proved beyond doubt that Lallan Ojha (A2), S. K. Singh, Superintendent (PW12), Inspector and K. N. Srivastava (PW29) had been called for the purpose of a search to be conducted at M/s Ankita Electrodes, but instead of joining the said search team, all the three absented themselves. The testimony of PW12 S. K. Singh, PW21 Sunil Kumar and PW29 K. N. Singh shows that Lallan Ojha (A2) misled them by asking these officials to join him instead of joining the actual team, which was required to search the premises of M/s Ankita Electrodes.
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166. PW12 S. K. Singh, the then Superintendent, Central Excise, Anti Evasion, Delhi1 testified that Lallan Ojha (A2) was posted as Superintendent in December 2011. On 27.12.2011, Deputy Commissioner, B. Mohan informed him that there is a verification/ search operation going to be conducted on 28.12.2011 and he (i.e. PW12) was required to report on duty at 10:00 am in the office on 28.12.2011. On 27.12.2011 at about 6:30 pm, Lallan Ojha (A2) asked him on the intercom to join the verification. PW12 testified that he thought that A2 was talking in connection with the verification to be conducted on 28.12.2011. Thereafter, he (i.e. PW12) along with A2 and Inspector K. N. Srivastava accompanied in his vehicle and reached Kirti Nagar at about 7:00 pm. He testified that while he himself and K. N. Srivastava remained sitting inside the vehicle, A2 came out of the car and proceeded forward. After 5 minutes, A2 came back after making some inquiries. Thereafter, they all returned to their office. After 10 minutes, he (i.e. PW12) received a call from A2 on intercom and asked him to remain present in the office the next day i.e. 28.12.2011 at about 7:30 am for proceeding for verification in regard to the same operation for which they were called at 10:00 am. PW12 further testified that on 28.12.2011, Lallan Ojha, Sunil CC No. 19/13 Page No. 119 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 Kumar Inspector, K. N. Srivastava Inspector and he (i.e. PW12) himself assembled at the gate of the office at about 7:30 am. He (i.e. PW12) along with Inspector Sunil Kumar proceeded in the car of Sunil Kumar, whereas Lallan Ojha and K. N. Srivastava reached Kirti Nagar separately at about 7:55 am/8:00 am. All of them proceeded towards Rama Road premises. PW12 testified that when they reached the said premises, there was a small room and a big room. Two persons were sitting there. A2 asked them as to what was being carried out from there. Those persons informed that the mobile phones were imported from China. Then an inquiry was made as to whether any excise related work is carried out by them like value addition, packing, repacking or not. They responded that mobiles are imported from China and sold in the same condition. PW12 testified that he along with Inspector Sunil Kumar left the premises and proceeded to the office. Deputy Commissioner was informed about the visit. This witness thereafter turned hostile and he was duly cross examined by Ld. Public Prosecutor. He was confronted with his own statement under Section 161 CrPC at length. He admitted that he had made a statement under Section 164 CrPC on oath, which is Ex.PW12/PB. He admitted in cross examination that he had not seen any search warrant. He CC No. 19/13 Page No. 120 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 was confronted with his statement under Section 164 CrPC, wherein he had stated that since no search warrant was shown to any person, therefore, he (i.e. PW12) suspected that the search was fake. He admitted that he had stated before Magistrate that they i.e. PW11 himself, Inspector Sunil Kumar and Inspector K. N. Srivastava, all observed and thought that this search operation was fake because in a genuine search operation, search warrant or authorization slip is always shown to the party. PW12 denied that on 29.12.2011 at about 10:00 pm, A2 called him over phone and informed that a relative of Anand Aggarwal was hospitalized and that he would meet him next day i.e. 30.12.2011. He however admitted that he had stated so before Ld. Metropolitan Magistrate. PW12 admitted that he had stated before Ld. Metropolitan Magistrate that Anand Aggarwal had contacted him on the phone on 30.12.2011 at 8:45 am and that he told Anand Aggarwal that he would meet him outside Fortune Hospital at 9:30 am and he handed over to him a bag and told him that there are 20 lacs in the same, which are required to be handed over to Lallan Ojha.
167. PW12 further admitted in cross examination by Ld. Senior Public Prosecutor that he had stated before Ld. CC No. 19/13 Page No. 121 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 Metropolitan Magistrate that he had called up Lallan Ojha on 30.12.2011 and informed him i.e he (i.e. PW12) had collected packet of Rs.20 lacs from Anand Aggarwal.
168. He was also confronted with his statement under Section 161 CrPC, which he denied altogether on being confronted.
169. PW21 Sunil Kumar, Superintendent was also in the team of Lallan Ojha (A2) and also testified in the same way as PW12.
170. PW29 K. N. Srivastava was posted as Inspector in Central Excise (Anti Evasion), Delhi1, at the relevant time and he was also a member of team of Lallan Ojha (A2). He also testified in the same manner as PW12.
171. All these witnesses, namely PW12, PW21 and PW29 have testified that they were not shown any search warrants/ authorization letters by Lallan Ojha (A2). All of them have testified that no case of excise was found there. PW11 B. Mohan has testified that actually a search was planned to be conducted on M/s Ankita Electrodes on 28.12.2011 and a team for that purpose was constituted, who were directed to remain present at 10:00 a.m. on 28.12.2011.
CC No. 19/13 Page No. 122 of 140CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 However, Lallan Ojha (A2), S. K. Singh and Insp. K. N. Srivastava were not present at the scheduled time i.e. at 10:00 a.m. on 28.12.2011. PW11 has further testified that no search warrant or authorization other than on M/s Ankita Electrodes was issued for 28.12.2011. PW12, PW21 and PW 29, who were joined in his team by Lallan Ojha (A2) to conduct the search at the premises of A5, have testified that they had been called by Lallan Ojha (A2) at 07:30 a.m. itself on 28.12.2011.
172. The entire chain of evidence clearly proves that a search was planned to be conducted at the premises of M/s Ankita Electrodes and no search warrant/ authorization was issued to conduct the search at the godown of A5. Lallan Ojha (A2) and his teammates namely, PW12, PW21 and PW29 should have joined the search team formed by PW11, but A2 and his teammates intentionally skipped the said search team and rather proceeded to conduct their own search at the godown of A5.
173. Ld. Defence counsels have drawn my attention to the Central Excise Manual and submit that the Superintendents and Inspectors are required to gather their own intelligence. Ld. Defence counsel has referred to the CC No. 19/13 Page No. 123 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 testimony of PW12, who has testified that they had done verification in the godown of A5 and when nothing was found, the matter was laid to rest.
174. It is true that the Superintendents and Inspectors are required to gather their own intelligence, but this process is different from "verification". PW11 B. Mohan, the then Deputy Commissioner, Anti Evasion, Central Excise, Delhi1, has testified that an intelligence is developed by Inspectors and Superintendents and then secret verification of the premises is carried out by them. Thereafter, the search warrants are issued. He admitted in crossexamination by Ld. Senior Public Prosecutor that in case of premises/ godown of Anand Aggarwal (A5) at 71/7, A4, First Floor, Rama Road, Najafgarh Road, Industrial Area, New Delhi, neither any proposal was put to Commissioner for carrying out the raid/ search on 28.12.2011, nor any approval was given by him. In crossexamination by Sh. Rakesh Kumar Sharma, Ld. Defence counsel for A4 and A5, PW11 made it clear that no officer of Anti Evasion Branch can visit any premises without proper authorization/ search warrants. However, the officers are at liberty to gather intelligence and develop the same. He further testified that, "gathering of CC No. 19/13 Page No. 124 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 intelligence has to be discreet and does not involve visit to a premises, otherwise the intelligence would get leaked".
175. This evidence clearly shows that the visit to the godown of A5 at Rama Road, was not intended to gather any intelligence, rather it was a raid without any authorization/ search warrants. The guilty intention of A2 is visible from the fact that he and his teammates were required to join an authorized search at M/s Ankita Electrodes, but they intentionally skipped their duties and instead reached the godown/ premises no. 71/7, A4, First Floor, Rama Road, Najafgarh Road Industrial Area, New Delhi, belonging to A5.
176. I have perused the statements under Section 164 Cr.PC of PW12, PW21 and PW29, which they made before Ld. Metropolitan Magistrates. PW12 in his statement under Section 164 Cr.PC has stated that it was a fake raid and on the instructions of Lallan Ojha, he received from Anand Aggarwal a sum of Rs.20 lacs, which handed over the same to Hemant Gandhi. PW12 resiled from this portion of his statement under Section 164 Cr.PC and he was clever enough to admit that he made such a statement before Ld. Metropolitan Magistrate but it was done under pressure from CC No. 19/13 Page No. 125 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 CBI. It is clear that this accused is lying blatantly before this court and I have no hesitation in holding that actually he was an accomplice in the crime with A2. Since PW12 has resiled from his statement under Section 164 Cr.PC (Ex.PW19/A) to the extent as mentioned by me above, however, PW12 has supported the prosecution version so far as the raid without search warrant is concerned.
177. In nutshell, the evidence discussed above that there was no authorization for conducting search or verification. Rather, Lallan Ojha (A2) and his teammates deliberately skipped the actual raiding team which was to be conducted at some other place. The intercepted conversations reveal that this was not simply a vexatious search, but actually it was a rogue raid.
14. What intercepted calls prove?
178. I would directly come to the intercepted calls of 28.12.2011. Call No. 13 is between Lallan Ojha (mobile phone no. 9953248659) and Hemant Gandhi (mobile phone no. 9818517000). Lallan Ojha is telling that as soon as we will tighten, everything is to be concluded within half an hour. This conversation is 07:56 a.m. Call No. 14 is again CC No. 19/13 Page No. 126 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 between these two persons and the aforesaid mobile numbers, in which Hemant Gandhi is guiding Lallan Ojha, who has reached near the premises of A5. Call No. 15 at about 08:25 a.m. between these two persons clearly reveals that Hemant Gandhi is informing Lallan Ojha that two shipments of 40000 pieces each has been received. I may point out that Lallan Ojha in his statement under Section 313 Cr.PC has not denied having reached alongwith his team mates at the godown of A5. PW12 has also testified that they assembled at the gate of office at about 07:30 a.m. on 28.12.2011 and reached Kirti Nagar at about 07:55 a.m. / 08:00 a.m. He also testified that about about 08:45 a.m., the premises in question was opened and they entered the said premises where two persons were sitting. On being questioned by Lallan Ojha, those two persons informed that mobile phones were imported from China and are sold as it is. PW12, PW21 and PW29 are concealing as to what actually transpired at the godown of A5. However, the intercepted calls reveal the true nature of the raid. Since PW 12 has testified that they entered the premises at about 08:45 a.m., I would like to refer to the calls which were made after 08:45 a.m. on 28.12.2011.
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179. Call no. 16 between A2 and A3 is at 9:3:28 am on 28.11.2012 in which Lallan Ojha is telling Hemant Gandhi that matter should be resolved within 2025 minutes. Now, I will directly come to call no.20 at 11:00:27 am between A2 and A3, Lallan Ojha (A2) is telling Hemant Gandhi that there are 3 or 4 boys.
180. I may mention here that prosecution has proved Call No. 73 dated 30.12.2011, at 19:23:21, which took place between Lallan Ojha (Mobile no. 9811602221) and S. K. Singh (Mobile no. 9818145883), transcript of which has been proved as Ex.PW2/PX16.
181. Now, I take up the intercepted call No. 48between Mahender Kapoor (01123379010) and Hemant Gandhi (01125225641), which took place on 28.12.2011 at 13:33:08. Mahender Kapoor has been cited as PW22 and has turned hostile. He has not even identified his own voice and voice of Hemant Gandhi. However, the voice of Hemant Gandhi has been identified by PW1 Rajesh Verma, who is the driver of Hemant Gandhi, when the intercepted call was played in the court. The transcript of the same has been proved as Ex.PW1/X25. In this call, Hemant Gandhi is telling that matter was settled at "sixty". Ld. Senior Public CC No. 19/13 Page No. 128 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 Prosecutor submitted that the amount is Rs.60 lacs. Hemant Gandhi further states that deal was done right at the spot.
182. The call nos. 12 to 20, which are started from 07:20:25 to 11:00:27 on 28.12.2011, clearly prove that Lallan Ojha is proceeding to Hemant Gandhi and is discussing about the location of the premises. The Call No. 20 shows that Lallan Ojha had reached the premises and had found 4 or 5 boys, but the owner was not there. However, he is informing to Hemant Gandhi that owner has not come and that he had stated that he would come within 10 to 15 minutes. Call No. 20 reflects that Lallan Ojha was speaking from the premises in question, at 11:00:27.
183. In Call No. 24, at 11:21:34, Hemant Gandhi is telling Lallan Ojha to keept it tight and that he will set the things. Hemant Gandhi also informed Lallan Ojha that Dilip Aggarwal is coming and Anand Aggarwal is the owner. Lallan Ojha tells Hemant Gandhi that he (i.e. Anand Aggarwal) was sitting in front of him.
184. In Call No. 26, at 11:37:09, Lallan Ojha tells Hemant Gandhi that one beat import is about 24 - 25 crores.
185. Call No. 27 is between Hemant Gandhi and Dilip CC No. 19/13 Page No. 129 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 Aggarwal. Dilip Aggarwal tells Hemant Gandhi that Anand Aggarwal had already reached at the premises, whereas, he (i.e. Dilip Aggarwal) will reach within five minutes. Dilip Aggarwal also informs that Anand Aggarwal had been confined after closing the room. Dilip Aggarwal tells Hemant Gandhi to talk to them i.e. Excise officials.
186. In Call No. 30 at 11:53:20, Lallan Ojha is telling Hemant Gandhi that "ye kaam jhatke me hota hai. Hum to ye karte rahe hain. Tum jhatke me kaam karo, der karne ki jarurat nahi" (this work is done in a flash and therefore, do it quickly).
187. Call No. 33 (trancript Ex.PW1/X10) is between Hemant Gandhi and Dilip Aggarwal, at about 12:05:52. Call No. 34 is between Lallan Ojha and Hemant Gandhi. Lallan Ojha is telling that "30 (tees)" has been offered, but Lallan Ojha did not agree to it and stated that it will be settled above "one".
188. Ld. Senior Public Prosecutor submitted that Call No. 34 shows that Rs.30 lacs were offered to Lallan Ojha but Lallan Ojha made a demand for more than "one crore".
189. Call No. 37, transcript of which is Ex.PW1/XD14, CC No. 19/13 Page No. 130 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 shows that Hemant Gandhi is suggesting to Lallan Ojha to tell them that even DRI is also involved.
190. Call No. 39 (transcript Ex.PW1/X16) shows that Hemant Gandhi is telling Lallan Ojha to give them time to think and to arrange money.
191. Call No. 44 shows that Hemant Gandhi is telling that the person sitting inside (i.e. Hemant Gandhi) is the main owner and that he will take the decision. Lallan Ojha tells Hemant Gandhi that he has been tightened and that he is stuck up at "aath aane". Ld. Senior Public Prosecutor submitted that it means Rs.50 lacs.
192. Call No. 45 at 13:09:39 is important, in which Lallan Ojha tells Hemant Gandhi that matter is settled at "60". As per prosecution, the amount is Rs.60 lacs. Hemant Gandhi tells Lallan Ojha to take this amount today itself and finish the issue. Lallan Ojha tells Hemant Gandhi that he will give it tomorrow. Hemant Gandhi tells that he will send the driver or someone else who will bring.
193. In Call No. 46, Lallan Ojha is telling Hemant Gandhi that he is going home and he will having bath and thereafter he will come to the office and told 'mission CC No. 19/13 Page No. 131 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 successful". All these conversations proved that the entire proceedings were continued till 01:30 p.m.
194. The Call No. 48 is between Hemant Gandhi and Hemant Kapoor. As already discussed, Hemant Gandhi calls Hemant Kapoor that the deal has been done directly at the spot.
196. I have already discussed that it was an unauthorized raid intended to threaten the businessmen and extort money from them under the colour of official duties. Lallan Ojha is not only the tracing the Anand Aggarwal but has also made a demand for more than Rs.One crore, but finally settled at Rs.60 lacs.
197. Call No. 62 is between Dilip Aggarwal and Puneet, in which Dilip Aggarwal is asking to Puneet to arrange Rs.3 lacs from somewhere. Dilip also tells him that 20 were delivered in a plastic bag.
198. Call No. 62 is conversation between Hemant Gandhi and Hemant Kapoor on 30.12.2011 and here is a reference of Lallan Ojha. Hemant Gandhi tells Hemant Kapoor that they will give the cheque.
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199. In call No. 65 Hemant Gandhi tells Lallan Ojha that he will bring the cheque.
200. Call No. 69 is again between Hemant Gandhi and Lallan Ojha. Hemant Gandhi is telling Lallan Ojha that he has received the cheque. Lallan Ojha asks whether "saaman bhi aa gaya na" (i.e. whether the thing has reached or not). Hemand Gandhi tells him that "saaman" would come in the evening aty 07:30 p.m.
201. Call No. 77, dated 30.12.2011 made at 11:39:23 shows that Lallan Ojha is asking whether the job is done. Hemant Gandhi says that he will come within 15 minutes.
202. Call No. 78 is between Hemant Gandhi and Lallan Ojha and its transcript is Ex.PW1/X48. Lallan Ojha is instructing Hemant Gandhi to "koi riyayat nahi" (have no concession). Hemant Gandhi tells that neither money nor things have been delivered.
203. Call No. 80 dated 31.12.2011 is between Hemant Gandhi and Lallan Ojha, in which Lallan Ojha tells Hemant Gandhi to bring "two or three out of them" (Unme se do teen leke aaiyega).
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204. There is a call No. 88, Ex.PW1/A, which is a conversation between driver (PW1) of Hemand Gandhi and Lallan Ojha. Rajesh, the driver of Hemant Gandhi tells Lallan Ojha on phone that he has come from Hemant Gandhi and has brought something to deliver to him i.e. to Lallan Ojha, "main sir Hemant Gandhi Ji ke yahan se aaya hun. Wo appka kucch saaman mere paas hai. We dena tha appko".
205. Further, calls upto Call No. 96 clearly show that in this illegal raid, Lallan Ojha cornered Anand Aggarwal and with the help of Hemant Gandhi settled for a sum of Rs.60 lacs. As a security, Anand Aggarwal had to deliver a cheque of Rs.20 lacs to Hemant Gandhi and some amount was delivered in cash. A sum of Rs.3 lacs was delivered by Hemant Gandhi to Lallan Ojha, through his driver. This amount approximately Rs.3 lacs was received by Dilip (PW2), the driver of Lallan Ojha a the telephonic instructions of Lallan Ojha. The CBI team recovered the aforesaid amount of approximately Rs.3 lacs from the car of Dilip (PW2). The entire chain makes out a clear case that Lallan Ojha organized a rogue raid, cornered Anand Aggarwal and compelled him to such an extent that Anand Aggarwal agreed to pay an amount of Rs.60 lacs as a security to his commitment. Anand Aggarwal has also issued CC No. 19/13 Page No. 134 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 a cheque in the sum of Rs.20 lacs, which was recovered from the possession of Hemant Gandhi (A3). The chain of events leave me in no doubt that the said bribe amount of Rs.3 lacs were delivered to Lallan Ojha.
DILIP AGGARWAL (A4) AND ANAND AGGARWAL (A5)
206. I have already discussed that Anand Aggarwal (A
5) had paid the money to Lallan Ojha (A2) through Hemant Gandhi (A3). Dilip Aggarwal (A4) assisted Anand Aggarwal in this deal. But, it has to be seen as under what circumstances they did so. A2 alongwith other Central Excise officials raided the godown of Anand Aggarwal (A5) without any authorization. I have already held that it was totally illegal raid. Now, it is to be seen that as to for what purpose, A4 and A5 agreed to pay the said money. Testimony of PW 12, PW21 and PW29 show that no illegality on part of A5 was found. Intercepted calls also do not reflect that any illegality on part of A5 was found. That is why, a threat of involvement of DRI (i.e. Directorate of Revenue Intelligence) (See Calls No. 33, 36 and 48) is being extended. In Call No. 27, Dilip Aggarwal is perplexed as to what is the role of Excise officials. Call No. 48 is a conversation between Hemant Gandhi and Mahender Kapoor, in which Hemant Gandhi tells CC No. 19/13 Page No. 135 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 Mahender Kapoor "inka banta bhi nahi tha, magar 60 par baat hui hai" (there was no liability, but matter was settled for 60). In order to be more careful, I have called for the case diaries and perused the same and I find that A4 and A5 are victims of the fear created by Lallan Ojha (A2) and his team mates alongwith Hemant Gandhi (A3). The intercepted calls show that such a terrible fear was generated during this illegal raid that without committing any offence, A4 and A5 ended up shelling out enormous money. Thus, there are two factors, which prove that A4 and A5 were not only the victims but were actually innocent. These two factors are (1) the raid itself was illegal, (2) no illegality in the business of A4 and A5 was found. Thus, they paid money for no offence on their part. This is a sordid story where victimized businessmen were triply suffered. First, due to illegal raid; second, due to having paid money to public servants without doing any illegality in the business and, third, having been prosecuted. In these circumstances, A4 and A5 deserve honourable acquittal.
Conclusion
207. In view of above discussion, I convict Lallan Ojha (A2) under Section 120B IPC read with Section 7, 12, 13(2) CC No. 19/13 Page No. 136 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 read with Section 13(1)(d) of the Prevention of Corruption Act, 1988, for having conspired with A3 and others.
208. I further convict Lallan Ojha (A2) under Section 7 and Section 13 (2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988.
209. Accused Dilip Aggarwal (A4) and Anand Aggarwal (A5) are hereby acquitted.
210. Bailbonds and surety bonds of all the accused persons are discharged.
Announced in the open court on this 26th day of August, 2016 (Vinod Kumar) Special Judge03 (PC Act)/ CBI/ PHC / ND CC No. 19/13 Page No. 137 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 IN THE COURT OF SPECIAL JUDGE03 (P. C. ACT) (CBI), PATIALA HOUSE COURTS, NEW DELHI CC No. 19/13 RC No. AC1/2012/A0001/CBI/AC1/ND Central Bureau of Investigation Versus Lallan Ojha S/o Late Sh. Babu Nandan Ojha R/o 21, Savita Vihar, Near Anand Vihar, New Delhi92 ORDER ON SENTENCE 26.08.2016 Present: Sh. V. K. Ojha, Ld. Public Prosecutor for CBI.
Convict Lallan Ojha on bail with Sh. V. K. Ohri, Advocate.
Arguments on sentence heard.
It is argued by Sh. V. K. Ohri, Advocate for convict that the convict had acted under the command of his boss and that now the boss has been discharged. Therefore, a lenient view may be taken against the subordinate. It is further argued that convict has already retired and has suffered a long drawn trial. Further, the new amendment prescribing the CC No. 19/13 Page No. 138 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 four years of sentence under Section 13(1)(d) of the Prevention of Corruption Act, 1988 is not applicable to the present case. Therefore, the convict should be given less than three years of sentence, keeping in view the fact that the main offender i.e. the superior officer i.e. A1 has already been discharged.
On the other hand, Ld. Public Prosecutor has prayed for maximum sentence.
I have considered the facts and circumstances of the case. Keeping in view the grim nature of the offence, I sentence the convict to rigorous imprisonment for five years and a fine in the sum of Rs.10,000/, under Section 120B IPC read with Section 7, 12, 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988, in default of payment of fine, he shall further undergo simple imprisonment for six months.
I further sentence the convict to rigorous imprisonment for five years and a fine in the sum of Rs.10,000/, under Section 7 of the Prevention of Corruption Act, 1988, in default of payment of fine, he shall further CC No. 19/13 Page No. 139 of 140 CBI Vs. Anup Kumar Srivastava etc. Judgement Dated : 26.08.2016 undergo simple imprisonment for six months.
I further sentence the convict to rigorous imprisonment for five years and a fine in the sum of Rs.10,000/, under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988, in default of payment of fine, he shall further undergo simple imprisonment for six months.
All the sentences shall run concurrently. Copy of judgement be supplied free of cost to the convict.
File be consigned to Record Room.
Announced in the open court on this 26th day of August, 2016 (Vinod Kumar) Special Judge03 (PC Act)/ CBI/ PHC / ND CC No. 19/13 Page No. 140 of 140