Karnataka High Court
Sri Abdul Kareem Telgi vs The State Of Karnataka on 1 August, 2017
Bench: Ravi Malimath, John Michael Cunha
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 1ST DAY OF AUGUST, 2017
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL APPEAL NO. 1085 OF 2010
BETWEEN:
SRI. ABDUL KAREEM TELGI
@ KAREEM LALA @ LALA @ TELGI A.K.
S/O LAD SAB TELGI,
AGED ABOUT 50 YEARS,
RESIDING AT NO.5,
1ST FLOOR, SHIRIN MANZIL,
WALTON ROAD, COLOBA,
MUMBAI. ...APPELLANT
(BY SRI. M.T. NANAIAH, SR. ADVOCATE
A/W SRI. K. HEMANTH KUMAR, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
UPPARPET POLICE STATION,
BENGALURU.
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THROUGH CENTRAL BUREAU
OF INVESTIGATION.
... RESPONDENT
(BY SRI. P. PRASANNA KUMAR, SPL.PP FOR CBI.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) CR.P.C. PRAYING TO SET ASIDE THE ORDER
DATED 14.09.2010 PASSED BY THE SPECIAL JUDGE, 35TH
ADDL. CITY CIVIL & SJ., BENGALURU IN S.C. NOS. 643 OF
2003, 352 OF 2004 AND 353 OF 2004 - CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCES PUNISHABLE
UNDER SECTION 235(2), 259 READ WITH SECTION 120(B)
IPC. AND THE APPELLANT/ACCUSED IS SENTENCED TO
UNDERGO RIGOROUS IMPRISONMENT FOR 7 YEARS AND
TO PAY FINE OF RS. 50,000/- FOR THE OFFENCES
PUNISHABLE UNDER SECTION 256 IPC READ WITH
SECTION 120(B) IPC. IN DEFAULT OF PAYMENT OF
ABOVE FINE AMOUNT, THE APPELLANT/ACCUSED SHALL
FURTHER UNDER RIGOROUS IMPRISONMENT FOR A
PERIOD OF 1 YEAR AND THE APPELLANT/ACCUSED IS
SENTENCED TO UNDERGO RIGOROUS IMPRISONMENT
FOR 7 YEARS AND TO PAY FINE OF RS. 50,000/- FOR THE
OFFENCE PUNISHABLE UNDER SEC. 259 IPC READ WITH
SECTION 120(B) IPC. IN DEFAULT OF PAYMENT OF
ABOVE FINE AMOUNT, HE SHALL FURTHER UNDERGO
RIGOROUS IMPRISONMENT FOR A PERIOD OF 1 YEAR.
THIS CRIMINAL APPEAL COMING ON FOR HEARING
THIS DAY, JOHN MICHAEL CUNHA J., DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is directed against the judgment dated 14.09.2010 in S.C. Nos.643 of 2003, 352 of 2004 and 353 -3- of 2004, insofar as convicting the appellant / accused No.1 for the offences punishable under Sections - 256 and 259 read with Section-120B of IPC and sentencing him to rigorous imprisonment for 7 years and a fine of Rs.15,000/- for each of the offences.
2. The brief facts leading to this appeal are as follows:
Accused No.1-(Abdul Kareem Telgi) was arrested in Crime No.545 of 2000 of Upparpet Police Station, Bengaluru city for the offences under sections 255 to 266, 461, 463, 468, 471, 475, 420 of IPC read with Section-
120B of Indian Penal Code, on the allegations that he was involved in large scale manufacture, sale and circulation of fake stamps and stamp papers. He was lodged in Central Prison, Parappana Agrahara, Bengaluru as UTP No.4148.
The case of the prosecution is that despite being in judicial custody, accused No.1 continued his illegal activities of sale and circulation of fake stamps in different parts of the country like Delhi, Chandigarh, Chennai, -4- Tiruchy and Hyderabad by entering into criminal conspiracy with his associates either contacting them in person in the Central Prison or through mobile phones.
3. Information was collected to the effect that his associates that i.e., Accused No.2, Badruddin and Accused No.3, Rafi Ahmed were regularly visiting Bengaluru Central Prison on one pretext or the other and meeting accused No.1 to conspire for sale and circulation of fake stamps. On collecting reliable information about the ongoing activities of accused No.1 and his associates, STAMPIT, the investigating agency obtained necessary permission from the competent authority under Section 5(2) of the Indian Telegraph Act, 1885 for intercepting clandestine communications between accused No.1 and his associates. The telephonic surveillance was mounted on various mobile numbers which were being used by accused No.1 and his associates. The audio cassettes containing the conversation together with the specimen voice samples of accused No.1 and his associates were sent to CSFL, CBI, -5- New Delhi and it was confirmed that the voices recorded in the audio cassettes were of the same persons. The mobile phones (Samsung and Nokia) were recovered at the instance of accused No.2 Badruddin on 18.10.2002. Accused No.1 was initially using the Nokia Handset and after he had access to the Samsung handset, he handed over the Nokia handset to Badruddin for his use. During investigation it revealed that accused No.1 was exclusively using four mobile numbers from these handsets:
(i) 98453-83006
(ii) 98450-28563
(iii) 98450-30697
(iv) 98451-23568
4. The accused persons were frequently changing the sim cards resulting in change of mobile numbers. The analysis of the intercepted conversations between accused No.1 and his associates revealed that accused No.1 was monitoring and instructing his associates running the fake stamp circulation across the country despite his confinement in the Central Prison. It also revealed that accused No.1 was given the status of a special security -6- prisoner in the Central Prison and accused Nos.2 and 3 used to meet him regularly. Following the lead obtained from the conversations between accused No.1 and his associates, the accused persons were arrested and at their instance, large volume of fake stamp papers and seals and allied materials were seized at different parts of the country and the investigation having disclosed commission of offences punishable under Section-120B IPC read with Sections-256, 258, 259 and 420 of IPC and Section 63(b) of Karnataka Stamps Act 1957; Sections 7, 12 and 13(1)(d) read with 13(2) of Prevention of Corruption Act 1988 and under Sections-3, 4 and 25 of Karnataka Control of Organised Crimes Act 2000, accused Nos.1 to 33, were sent up for trial.
5. The Trial Court framed in all 58 charges against Accused Nos.1 to 27 and 31 to 33 for the following offences namely, Sections 256, 258, 259, 420 read with Section 120 of IPC, Sections 3(i), 3(ii), 3(4), 3(5), 4 and 25 of the Karnataka Control of Organized Crimes Act, 2000 -7- (hereinafter referred to as 'the KCOC Act', for brevity) read with Section 120-B of IPC; Sections 7, 13(1)(d) read with Section 13(2) and Section 12 of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'the PC Act' for brevity) read with Section 120-B of IPC and also for the offences under Section 63-B of the Karnataka Stamp Act, 1957 read with Section 120-B of IPC.
6. To substantiate the above charges, the prosecution examined in all 146 witnesses as PW-1 to PW- 146 and got marked Exhibits P-1 to P-580 and the material objects at M.O.Nos.1 to 230. On behalf of the accused, Exhibits D-1 to D-6 were marked during the course of the cross-examination of the prosecution witnesses.
7. Based on the material produced by the prosecution, the Trial Court formulated the following points for considerations which gives a glimpse of the specific accusations made against Accused No.1 viz., "1. Whether the prosecution proves beyond all reasonable doubt that these -8- accused Nos. 1 to 19, 21 to 27 and 31 to 33 in criminal conspiracy with each other were in possession of fake rubber seal of stamp vendors, banks, insurance company and government officers as detailed in the charges knowingly or having reason to believe that the seals were intended to be used for the purpose of counterfeiting stamps and stamp papers issued by the government and for the purpose of circulation of counterfeiting stamps and stamp papers for the purpose of earning a revenue illegally and thereby, committed an offence punishable under Section 256 IPC read with Section 120(B) IPC as alleged?
2. Whether the prosecution further proves beyond all reasonable doubt that these accused Nos. 1 to 19, 21 to 27 and 31 to 33 in criminal conspiracy with each other sold the counterfeit stamps and stamp papers knowingly had a reason to believe that those are counterfeit stamps pretending that those were issued by the government to earn revenue illegally as detailed in the charges and thereby, committed an offence punishable under Section 258 IPC read with Section 120(B) IPC as alleged?
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3. Whether the prosecution further proves beyond all reasonable doubt that these accused Nos. 1 to 19, 21 to 27 and 31 to 33 in criminal conspiracy with each other held possession of counterfeit stamp and stamp papers knowingly or had a reason to believe that those are counterfeit stamps to show as if it were genuine stamps issued by the government for the purpose of acquiring the revenue illegally and intending to use the same as genuine stamps as detailed in the charges and thereby, committed offences punishable under Section 259 IPC read with Section 120(B) as alleged?
4. Whether the prosecution proves beyond all reasonable doubt that these accused Nos. 1 to 19, 21 to 27 and 31 to 33 in criminal conspiracy with each other cheated the government and various banks and insurance companies to pay the amount for counterfeiting stamps/stamp papers knowingly those were counterfeiting stamps/stamp papers earned huge amount with dishonest intention as detailed in the charge and thereby committed an offence punishable under
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Section 420 IPC read with Section 120(B) as alleged?
5. Whether the prosecution proves beyond all reasonable doubt that these accused Nos. 1 to 19, 21 to 27 and 31 to 33 in criminal conspiracy with each other continued unlawful activities either as a member of organised crime syndicate or on behalf of such syndicate indulged in selling of counterfeit stamps and stamp papers with an objective of gaining pecuniary benefit and causing loss to the government ex-chequer and thereby, committed an offence punishable under Section 3(1) (ii) of the Karnataka Control of Organised Crimes Act, 2000 read with Section 120(B) of IPC as alleged?
6. Whether the prosecution further proves beyond all reasonable doubt that these accused Nos. 1 to 19, 21 to 27 and 31 to 33 in criminal conspiracy with each other acquired the various amounts derived from the commission of offence of organised crime and thereby, committed an offence punishable under Section 3(5) of the Karnataka Control of
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Organised Crimes Act, 2000, read with Section 120(B) IPC as alleged?
7. Whether the prosecution proves beyond all reasonable doubt that these accused Nos. 1 to 19, 21 to 27 and 31 to 33 being the members of the Organised Crime Syndicate in order to do illegal trading of counterfeit stamps and stamp papers were holding stocks of such stamp/stamp papers and thereby, committed an offence punishable under Section 3(4) of the Karnataka Control of Organised Crimes Act, 2000 read with Section 120(B) IPC as alleged?
8. Whether the prosecution proves beyond all reasonable doubt that these accused Nos. 1 to 19, 21 to 27 and 31 to 33 were in possession of unaccountable wealth as members of Organised Crime Syndicate derived from illegal trading of counterfeit stamps and stamp papers being a commission of organised crime and thereby, committed an offence punishable under Section 4 of Karnataka Control of Organised Crimes Act, 2000, read with Section 120(B) IPC as alleged?
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9. Whether the prosecution further proves beyond all reasonable doubt that these accused Nos. 32 - P.N. Jayasimha, the then Superintendent and accused No.3 - Nanjappa, the then Assistant Superintendent of Central Prison, Bangalore during the period from 22.11.2001 to 6.10.2002 by abusing their official possession as a public servant in order to gain unlawfully from the Organised Crime Syndicate in dealing with counterfeit stamp/stamp papers headed by accused No.1/Abdul Kareem Telgi and on accepting the illegal gratification made all benefits to accused No.1 including providing separate sales in order to use the mobile phones to contact his associates enabling to do counterfeit stamp business as a head of the Organised Crime Syndicate and thereby, intentionally avoid to carryout the directions of the superior officers and abstain from taking lawful measures and thereby, committed an offence punishable under Section 25 of the Karnataka Control of Organised Crimes Act, 2000 read with Section 120(B) IPC?
10. Whether the prosecution further proves beyond all reasonable doubt that the
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accused No.32 - P.N. Jayasimha, accused No.33 - Sri. Nanjappa, the then Superintendent and Assistant Superintendent of Central Prison, Bangalore respectively in criminal conspiracy with the other accused Nos. 1 to 19, 21 to 27 and 31 by misusing the official possession demanded and accepted illegal gratification for providing a special accommodation to accused No.1 in one of the room attached to the jail hospital and also accepted the gift like refrigerator, shoes etc., and facilitating the accused No.1 to hold the illegal business of Organised Crime Syndicate in dealing with counterfeit stamps through mobile phones and allowed the associates of accused No.1 including accused Nos. 2 to 6 and 12, 16, 19, 26, 27 & 31 to meet at Central Jail Premises unlawfully from the main gate and thereby, committed an offence punishable under Section 7, 12, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 read with Section 120(B) IPC as alleged?
11. Whether the prosecution further proves beyond all reasonable doubt that these accused Nos.1 to 19, 21 to 27 and 31 to 33 in
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criminal conspiracy with each other though not being appointed as a stamp vendor to sell the stamp and stamp papers etc., as detailed in the charge and thereby, committed an offence punishable under Section 63(b) of Karnataka Stamps Act, 1957 read with Section 120(B) of IPC as alleged?"
8. Upon hearing the learned Special Public Prosecutor (SPP) and the learned counsel for the accused and considering the oral and documentary evidence before it, the Trial Court by the impugned judgment, passed the following order:
"ORDER The accused Nos. 1 to 3, 5 to 12, 18, 21 to 24 and 26 are convicted under Section 235(2) Cr.P.C for the offences punishable under Section 259 IPC read with Section 120(B) IPC. In addition, the accused Nos. 1 to 3, 5 to 12, 18 and 26 are also convicted under Section 235(2) Cr.P.C for the offences punishable under Section 256 IPC read with Section 120(B) IPC.
- 15 -The accused Nos. 4, 13 to 17, 19 25, 27
and 31 to 33 are acquitted under Section 235(1) Cr.P.C for the offences charged under Section 256, 258, 259 and 420 IPC read with Section 120(b) IPC and also for the offences under Section 63(b) of Karnataka Stamp Act, 1957 and under Section 3(1)(ii), 3(4), 3(5), 4 and 25 of the Karnataka Control of Organised Crimes Act, 2000, read with Section 120(B) IPC; and under Section 7, 12, 13(i)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 read with Section 120(B) IPC.
Holding the guilt of the accused Nos. 1 to 3, 5 to 12, 18, 21 to 24 and 26 for the above charge under the above specified offences and consequent effect of the detailed reasoning, it is held that they stand acquitted under Section 235(1) Cr.P.C of the offences under Sections 258 and 420 IPC read with Section 120(B) IPC; and also for the offences under Section 63(b) of Karnataka Stamp Act, 1957 and under Section 3(i)(ii), under Section 3(4), 3(5), 4 and 25 of the Karnataka control of Organised Crimes Act, 2000, read with Section 120(B) IPC; and under Section 7, 12, 13(i)(d) read with Section 13(2) of Prevention of Corruption
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Act, 1988 read with Section 120(B) IPC and in addition the accused Nos. 21 to 24 stand acquitted under Section 235(1) Cr.P.C of the offences charged under Section 256 IPC read with Section 120(B) IPC.
Since in view of the nature of the offences committed by these accused Nos. 1 to 3, 5 to 12, 18, 21 to 24 & 26 as held above there is no such justifiable ground to proceed in accordance with Section 360 Cr.P.C or under the Provisions of Probation of Offenders Act. Therefore, it is ordered to hear those accused on question of sentence to be imposed for the above offences for which they have been convicted under Section 235(2) Cr.P.C.
The accused No.12 who being convicted as above is on bail now taken him to the judicial custody for a period pending consideration of the sentence to be imposed on him.
It is ordered to release the accused No. 13 - C.S. Balaji, accused No. 14 - Parvez Ahamad Telgi, accused No. 15 - Khalid Ahamad, accused No. 17 - Sri. Mohammed Sohail @ Shabeer Ahmed Sheik, accused No.
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19 - Sri. Mohammed Ghouse Mulali Shiggavi and accused No. 27 - Sirajuddin Nasipudi in case, if, they are not required for any other cases.
The accused No. 4 - Byroji Rao, accused No. 16 - Jeetendar T Maddar, accused No. 25
- Sajju @ Sarju, Sajjid @ Sirajuddin @ Singoti Khader Sha Mohammed @ Khader Sha Singoti, accused No. 31 - M.B. Aali Iliyas, accused No. 32 - P.N. Jayasimha and accused No. 33 Sri. Nanjappa who are on bail are set at liberty."
Feeling aggrieved by the impugned judgment insofar as convicting Accused No.1/appellant for the offence under Sections 256, 259 IPC read with Section 120-B of IPC, the appellant is in appeal before this court.
9. We have heard Shri M.T. Nanaiah, learned Senior counsel appearing for Shri K. Hemanth Kumar and the learned Special Public Prosecutor and have examined the record.
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10. It is seen from the impugned judgment that in recording the conviction against the appellant / Accused No.1, the Trial Court has mainly relied on three types of evidence namely:
(1) Audio cassettes containing the recorded conversations among the accused, and the transcription thereof;
(2) Recovery of incriminating documents and material objects namely, the fake stamp papers, seals and other instruments;
(3) Expert opinion.
11. The first and the main contention urged by the learned Senior counsel is that the prosecution has not produced any certificate in terms of Section 65-B of the Indian Evidence Act, 1872, in proof of the audio cassettes MOs. 7, 8, 10, 112, 154 to 210, therefore, the same could not have been admitted in evidence. As the case set up by the prosecution is based on the intercepted telephone conversation which has led to the registration of the case
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and the consequent raid and recovery of incriminating material, in view of the defect in admitting these audio cassettes in evidence, the entire case of the prosecution is rendered vulnerable. In support of this argument, the learned Senior counsel has placed reliance on a decision of the Supreme Court in the case of ANVAR P.V. vs. P.K. BASHEER AND OTHERS (2014) 10 SCC 473.
12. We have gone through the above decision. Since the entire thrust of the argument of the learned Senior Counsel depends on non-compliance of the requirement of Section 65-B of the Evidence Act, it may be relevant to extract the said provision, which reads as under:
"65B. Admissibility of electronic records (1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this
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section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible."
(2) x x x
(3) x x x
(4) In any proceedings where it is
desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say.-
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant
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device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub- section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
(5) x x x"
13. In ANVAR P.V. vs. P.K. BASHEER, in paragraph 14, the Hon'ble Supreme Court has explained that, "14. Any documentary evidence by way of electronic record under the Evidence Act, in view of Sections 59 and 65-A can be proved only in accordance with the procedure prescribed under Section 65-B. Section 65-B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a
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paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under sub- Section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65-B(2). Following are the specified conditions under Section 65- B(2) of the Evidence Act:
(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;
(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;
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(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and
(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity."
14. In the instant case, no doubt, the prosecution has not produced the certificate as required under Section 65 of the Evidence Act, but, it is borne on record that the original CPU - M.Os.48 and 53, Samtel Computer with key board and mouse - M.O.151 and Monitor - M.O.152 themselves are produced before the court. In this regard, PW-1 - The Investigating Officer who recorded the conversation has deposed about the manner of recording the conversation and has identified the cassettes containing the conversation e.g., with regard to the events dated 21.7.2002 PW.1 has stated thus:
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"85. On 21.07.2002, conversation between Accused A.K. Telgi and others continued. Accused A.K. Telgi spoke to Manoj Mehta and Accused Rafi Ahmed about custodial interrogation and matters pertaining to High Court, STAMP IT, etc. Above stated conversations from mobile No.9845383006 were intercepted and recorded in 14 separate audio cassettes;"
Similar evidence is brought on record regarding the recording of the conversation throughout the surveillance and all these audio cassettes are produced before the court in original and are marked as M.Os 7, 8, 10, 112, 154- 210, 214-216, 221-227. With regard to the conversation that was copied into the cassettes, apart from producing the audio cassettes, the prosecution has produced the Computer and the CPU from which the said conversation was copied into the cassettes.
15. From the above, it stands established that the original documents itself are produced for the inspection of the court along with the original audio cassettes containing
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the questioned conversation. Therefore, the only question that arises for consideration is, when the primary evidence itself is before the court, whether the production of the certificate contemplated in Section 65-B of the Evidence Act is necessary so as to render these audio cassettes admissible in evidence?
16. It is trite law that contents of documents must be proved by primary evidence. Primary evidence is the document itself. Once a document is properly admitted in evidence, the contents thereof are also admitted in evidence though they may not serve as conclusive evidence. Therefore, whatever objection to the mode of proof, must be taken before the document is admitted in evidence. As already stated above, in the instant case, the primary evidence itself is available for consideration of the court. It is not the case of the appellant that the audio cassettes and the CPU are not inherently admissible in evidence. The objection is that they were marked in
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evidence without production of the certificate as required under Section 65B of the Evidence Act.
17. Section 65-B lays down the manner in which the contents of electronic records are to be proved. The section, in explicit terms, states that the electronic record would be admissible in evidence without further proof or production of original, if the conditions referred in sub-section (1) are followed. Thus, it is implicit in the section itself that when the original is produced for inspection of the court, the requirement of production of certificate is redundant. Apparently, for this reason, the Hon'ble Supreme Court in the above decision at paragraph 24 has clarified the legal position thus:
"24. The situation would have been different had the appellant adduced primary evidence, by making available in evidence, the CDs used for announcement and songs. Had those CDs used for objectionable songs or announcements been duly got seized through the police or Election Commission and had the
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same been used as primary evidence, the High Court could have played the same in court to see whether the allegations were true. That is not the situation in this case. The speeches, songs and announcements were recorded using other instruments and by feeding them into a computer, CDs were made therefrom which were produced in court, without due certification. Those CDs cannot be admitted in evidence since the mandatory requirements of Section 65-B of the Evidence Act are not satisfied. It is clarified that notwithstanding what we have stated herein in the preceding paragraphs on the secondary evidence on electronic record with reference to Section 59, 65-A and 65-B of the Evidence Act, if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance of the conditions in Section 65-B of the Evidence Act."
(Emphasis supplied)
18. In the instant case, undeniably, the original cassettes, computer and CPU are produced in evidence and
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the same are also marked in evidence. The Audio Cassettes which are produced and marked in evidence contain the original recording itself. Therefore, in our opinion, the certificate regarding the compliance of conditions specified in Section 65-B is not at all necessary in the instant case in order to render the said records admissible in evidence.
Even assuming for the sake of argument that there was such a requirement of production of the certificate as laid down in Section 65-B, the records of the Trial Court reveal that during the marking of these material objects, none of the accused raised any objection to admit them in evidence. In this context, it may be apposite to refer to a recent decision of the Hon'ble Supreme Court in the case of SONU @ AMAR vs. STATE OF HARYANA (2017 SCC ONLINE SC 765), wherein at paragraph 32, the Hon'ble Supreme Court has laid down that, if an objection regarding the proof of the document is not taken at the time when the document is produced before the court, the
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party cannot be permitted to raise the said objection at the appeal stage.
Paragraph 32 reads as follows:
"32. It is nobody's case that CDRs which are a form of electronic record are not inherently admissible in evidence. The objection is that they were marked before the Trial Court without a certificate as required by Section 65B (4). It is clear from the judgments referred to supra that an objection relating to the mode or method of proof has to be raised at the time of marking of the document as an exhibit and not later. The crucial test, as affirmed by this Court, is whether the defect could have been cured at the stage of marking the document. Applying this test to the present case, if an objection was taken to the CDRs being marked without a certificate, the Court could have given the prosecution an opportunity to rectify the deficiency. It is also clear from the above judgments that objections regarding admissibility of documents which are per se inadmissible can be taken even at the appellate stage. Admissibility of a document
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which is inherently inadmissible is an issue which can be taken up at the appellate stage because it is a fundamental issue. The mode or method of proof is procedural and objections, if not taken at the trial, cannot be permitted at the appellate stage. If the objections to the mode of proof are permitted to be taken at the appellate stage by a party, the other side does not have an opportunity of rectifying the deficiencies. The learned Senior Counsel for the State referred to statements under Section 161 of the Cr. P.C. 1973 as an example of documents falling under the said category of inherently inadmissible evidence. CDRs do not fall in the said category of documents. We are satisfied that an objection that CDRs are unreliable due to violation of the procedure prescribed in Section 65 B (4) cannot be permitted to be raised at this stage as the objection relates to the mode or method of proof."
(underlining supplied) In the light of the above legal position and in view of the facts discussed above, the contention raised in this regard is liable to be rejected and is accordingly, rejected.
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19. Incidental to the above contention, the learned Senior Counsel has put forth another ground in assailing the findings recorded by the Trial Court contending that the contents of the audio cassettes are not proved in accordance with law. It is the submission of the learned counsel that mere marking of a document is not proof unless the contents thereof are spoken to by the witnesses in the witness box. It is argued that in the instant case, various documents have been marked in evidence but none of the witnesses have deposed about the contents of the said documents; Hence, placing reliance on the proposition laid down in the case of SAIT TARAJEE KHIMCHAND AND ORS. vs. YELAMARTI SATYAM AIR 1971 SC 1965, the learned counsel contends that the audio cassettes and the computers which are said to contain the incriminating conversation, are liable to be excluded from consideration and if this evidence is excluded, prosecution will be left with no evidence whatsoever to prove the charges against the appellant.
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20. Even this contention does not appeal to us. A perusal of the records reveal that the entire conversation recorded in the audio cassettes was transcribed and the said transcriptions have been produced in evidence and are marked as Exhibits P-499, 500 and 505.
Apart from marking these documents in the course of trial, which in our opinion itself is sufficient to admit the contents thereof, PW-1 has elaborately deposed regarding each item of the conversation that has been found recorded. The relevant evidence of PW-1 finds place in paragraphs 79 to 145 of his evidence and we do not find it necessary to burden the record by reproducing the same. Therefore, even on factual score, the contention raised in this regard is liable to be rejected.
It is also borne on record that the cassettes produced in evidence were played in the open court. The Trial Court has extracted the relevant portions of the gist of this conversation and has even categorized the conversation referable to the respective accused. A
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reading of the evidence of the witnesses go to show that each of the conversation was spoken to by the witnesses and opportunity was granted to the defence to challenge the said conversation. Under the said circumstance, the contention urged by the learned counsel that the contents of the audio cassettes and the incriminating conversation recorded therein has not been spoken to by the witnesses and the defence was not provided an opportunity to challenge the said conversation holds no water.
It is also relevant to note that the Trial Court has discussed the conversation between the appellant and his associates in paragraph 214 and has held that the said conversation establishes the conspiracy hatched by Accused No.1 with regard to the sale and circulation of the fake stamp papers in different parts of the country. Even on reconsideration and reevaluation of the evidence, we do not find any reason to differ with the view taken by the Trial Court in this regard. The above evidence, in our opinion, is not only admissible, but it squarely implicates
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the appellant. The evidence on record clearly points out the nexus between the appellant and the other accused and the various role played by them in executing the conspiracy. For these reasons, the first contention urged on behalf of the appellant is rejected.
21. The next circumstance relied on by the prosecution in bringing home the guilt of the accused is the recovery of fake stamps and the materials used for circulation thereof. Assailing the admissibility of the recovery evidence produced by the prosecution, the learned Senior Counsel next contended that as per the prosecution, the stamps, stamp papers, seals, etc., were recovered either from Accused Nos.3, 5, 6, 9, 11 and 12, or at their instance. None of these recoveries have been effected from the possession of Accused No.1 or from the premises occupied by him. These recoveries by themselves do not connect Accused No.1 either to the offence under criminal conspiracy or to the offence under Section 256 or 259 of the IPC. The further submission of
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the learned counsel is that the recovery evidence produced by the prosecution indicate that Accused Nos. 3, 5, 6, 9, 11 and 12 have been carrying on the sale of stamp papers in their own names as their independent business, therefore, the said evidence could not have been used against Accused No.1. Since the prosecution has not seized any incriminating material from the possession of Accused No.1, and not a single piece of counterfeit stamp or the machine having been seized from the possession of the appellant, there is no direct evidence whatsoever to connect Accused No.1 to the alleged offence. In other words, it is the submission of the learned counsel that the recovery evidence relied on by the prosecution may implicate all other accused but not Accused No.1, as the said recovery does not have the effect of connecting him to the alleged offence.
22. In answering this contention, it should be noted that the main charge against Accused No.1 is of conspiracy. The specific allegation is that while confined in
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Central Prison, Accused No.1 - the appellant herein, continued his illegal activities of sale and circulation of fake stamp papers through his associates who have been arrayed as Accused Nos.2 to 33. In a charge of conspiracy, it is idle to expect direct evidence. The very nature of the offence is such that it is hatched in secrecy and that it is difficult, if not impossible to obtain direct evidence. In this context, the observation made by the Hon'ble Supreme Court in the case of YASH PAL MITTAL vs. STATE OF PUNJAB (1977) 4 SCC 540 is relevant for our purpose. In the said case, it is observed that, "9. x x x There may be so many devices and techniques adopted to achieve the common goal of the conspiracy and there may be division of performances in the chain of actions with one object to achieve the real end of which every collaborator must be aware and in which each one of them must be interested. There must be unity of object or purpose but there may be plurality of means sometimes even unknown to one another, amongst the conspirators. In achieving the
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goal several offences may be committed by some of the conspirators even unknown to the others. The only relevant factor is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of the conspiracy even though there may be sometimes misfire or over-shooting by some of the conspirators.
Even if some steps are resorted to by one or two of the conspirators without the knowledge of the others it will not affect the culpability of those others when they are associated with the object of the conspiracy."
23. The general rule is that acts and statements or writings of a person can be proved only against him and not against others. But in the case of conspiracy, Section 10 of the Evidence Act sets out an exception to the general rule and renders the acts or statements of any person who was a party to the conspiracy relevant. Section 10 of the Evidence Act reads as under:
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"10. Things said or done by conspirator in reference to common design.-
Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it."
24. In Yash Pal Mittal, the Hon'ble Supreme Court has laid down that an act or action of one of the accused cannot be used as evidence against another, but Section 10 of the Evidence Act provides otherwise. To attract the applicability of Section 10, the court must have reasonable ground to believe that two or more persons had conspired together for committing an offence and then the evidence
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of action or statement made by one of the accused could be used as evidence against other.
25. In the instant case, there is abundant evidence to show that Accused No.1 had entered into a conspiracy with the other co-accused. It is proved in evidence that pursuant to the voluntary statements of Accused Nos.5 to 11, in particular Accused Nos.6 and 9, recoveries of fake stamps worth Rs.166 crore were made at the instance of the accused. This evidence, by force of Section 10, clearly implicates and connects Accused No.1. Therefore, the submission of the learned counsel that there is no direct evidence against accused No.1 in proof of the possession, sale and circulation of the stamp papers, cannot be accepted. The prosecution having proved that Accused No.1 is a prime conspirator and pursuant to this conspiracy other co-accused possessed and got themselves involved in the sale of fake stamp papers, the recovery of those stamp papers from the possession of co-accused could be
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used as a corroborating evidence against Accused No.1. Therefore, even this contention is negatived.
26. Lastly it is contended that in respect of the very same offence, Accused No.1 is prosecuted in S.C.No.9 of 2001 arising out of Crime No.545 of 2000 of Upparpet Police Station and therefore the prosecution of the appellant before the Special Judge is bad in law. It is submitted that in S.C. 9 of 2001 accused No.1 was tried on the same charge of possession and sale of counterfeit stamps and stamp papers. The charges framed against Accused No.1 in the said proceedings as well as in the instance case are same, therefore, the prosecution of Accused No.1 is hit by Section 300 Cr.P.C. and Article 20(2) of the Constitution of India.
27. We are not persuaded to accept the above legal plea on the doctrine of double jeopardy, the Hon'ble Supreme Court in SANGEETABEN MAHENDRABHAI PATEL vs. STATE OF GUJARAT AND ANOTHER (2012) 7 SCC 621 has laid down thus:
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"33. In view of the above, the law is well settled that in order to attract the provisions of Article 20(2) of the Constitution i.e. doctrine of autrefois acquit or Section 300 Cr.P.C or Section 71 IPC or Section 26 of the General Clauses Act, the ingredients of the offences in the earlier case as well as in the latter case must be the same and not different. The test to ascertain whether the two offences are the same is not the identity of the allegations but the identity of the ingredients of the offence. Motive for committing the offence cannot be termed as the ingredients of offences to determine the issue. The plea of autrefois acquit is not proved unless it is shown that the judgment of acquittal in the previous charge necessarily involves an acquittal of the latter charge."
28. There are no documents before us to show as to what are the offences for which Accused No.1 was tried and prosecuted in S.C.No.9 of 2001. The appellant has not produced the copies of the charges framed in the above proceedings to lay a foundation for his argument that in
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respect of the very same charges, he has been prosecuted in this case. What Section 300 Cr.P.C. prohibits is the second prosecution and conviction for the same offence. There is absolutely no material before the court to show that the present prosecution is for the same offence for which Accused No.1 was tried and convicted in S.C.No.9 of 2001. Therefore, on factual score, the contention urged in this regard cannot be accepted.
29. Notwithstanding the same, it is orally pleaded that the appellant is being prosecuted for the very same charges. The same is disputed by the learned Special Public Prosecutor. Based on the contentions advanced, it is clear that the proceedings in S.C.No.9 of 2001 pertains to the offence of manufacture, sale etc., of counterfeit stamps, material etc., During investigation, the accused were arrested. Prosecution is for those offences. After arresting the accused with reference to S.C.No.9 of 2001, the accused committed offences as charged against them in the instant case, while in custody. Therefore, the
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charges in S.C.No.9 of 2001 and in the present case are totally different. The charge in the instant case is of committing offences while in custody. The charge in S.C.No.9 of 2001 are for committing offences prior to being taken into custody. Therefore, the offences charged are distinct and separate. Therefore, even if the oral submissions of the learned counsels are to be considered, the plea of the appellant that he is being prosecuted for the same charges cannot be accepted.
30. No other contentions are urged on behalf of Accused No.1 in this appeal. On going through the impugned judgment, we find that the Trial Court has considered the oral and documentary evidence produced by the prosecution and on proper appreciation thereof in the light of settled principles of law, has come to the conclusion that Accused Nos.1 to 3, 5 to 12, 18 and 26 are guilty of the offences under Sections 256 and 259 read with Section 120B IPC. Even on re-appreciation of evidence, we do not find any reason to differ with the
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reasoning and the conclusions arrived at by the Trial Court. We do not find any error or infirmity in the findings recorded by the Trial Court. The contentions urged in the appeal are devoid of merits. As a result, the appeal fails and the same is hereby dismissed.
31. Along with Accused No.1, Accused Nos.2, 11, 21, 24 and 26 were also denied the benefit of set-off. However, placing reliance on the decision of the Hon'ble Supreme Court in the case of STATE OF MAHARASHTRA AND ANOTHER vs. NAJAKAT ALIA MUBARAK ALI (2001) 6 SCC 311, those accused have been granted the benefit of set-off by this court in their respective criminal appeal Nos. 684/2011 (In respect of Accused No.2), Crl.A.No.337 of 2011 (In respect of Accused No.11), Crl.A.329 of 2011 (In respect of Accused Nos.3, 9 & 21), Crl.A.511 of 2011 (In respect of Accused No.10), Crl.A.565 of 2011 (In respect of Accused No.23) and Crl.A.415 of 2011 (In respect of Accused No.26). Therefore, on the ground of parity also,
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the appellant is entitled for set off as has been granted to the other appellants in the aforesaid criminal appeals.
32. The Trial Court by its judgment, declined to grant set-off for the appellant. We have considered the records. The records indicate that the appellant - Accused No.1 was produced in terms of body warrant dated 25.10.2002. Since then, he is in custody as on date. The judgment was delivered on 14.09.2010. He has already served sentence much more than what has been awarded to him. Therefore, we deem it just and necessary to extend the benefit of set-off under Section 428 of Cr.P.C. to the appellant.
33. Consequently, the appellant - Accused No.1 is set forth at liberty in this case, in case he is not required in any other case.
With the above observation, appeal is dismissed.
SD/- SD/-
JUDGE JUDGE
JJ/KS