Delhi District Court
Naseem Alam vs State (Nct Of Delhi) on 9 May, 2014
IN THE COURT OF SH. DAYA PRAKASH, ASJ-02/FTC,
NEW DELHI DISTRICT PATIALA HOUSE COURTS, DELHI
Case ID No. 02403R00113432013
Criminal Appeal No. 53/2013
Naseem Alam
S/o Sh. Abdul Hassan
R/o Prince Road, Galshahid,
Muradabad, Uttar Pradesh. ..... Appellant
Versus
State (NCT of Delhi) .......Respondent
Date of institution of the petition : 31.08.2013
Date when the case reserved for judgment : 21.03.2014
Date of announcement of judgment : 09.05.2014
JUDGMENT
09.05.2014
1. By this judgment, I shall dispose off the present appeal under Section 374 Cr.P.C. filed by appellant/accused Naseem Alam against the judgment dated 23.07.2013 and order on sentence dated 12.08.2013 passed by the Ld. MM in case FIR No.7/99, PS R.K. Puram.
2. Brief facts which are relevant for the disposal of present appeal are:-
CA No.53/2013 1/13
i) that in the instant case FIR No. 7/99 under Sections 420/ 468/471 IPC read with Section 12 of Passport Act was lodged at PS R.K. Puram on the compliant of complainant SI Nobat Singh.
ii) As per prosecution, on 03.01.1999, SI Nobat Singh was partolling with HC Hans Kumar. Both of them reached near Bhikaji Cama Place, R.K. Puram whereby they met a secret informer at about 7-7.15pm who told them that a person possessing fake passports will be coming in the said area shortly wearing black cap and carrying black bag. At that time, Ct. Mukesh and Ct. Rajender also met the aforesaid police officials.
On receiving the aforesaid secret information, a raiding party consisting of above mentioned police officials was constituted. Public persons were asked to join the raiding team but none of them joined. Without wasting further time, aforesaid raiding time took their positions and at about 7.30pm, accused wearing black cap and carrying black bag was apprehended by them at the instance of secret informer. On being searched, accused was found with possession of cash of Rs.2,45,000/-, 8 drafts (6 drafts of Rs.40,000/- each and 2 drafts of Rs.30,000/- each), 2 passports bearing No. 05347A and M226003 and its copy T2985545 and one order of the then Ld. ACMM Ms. Sangeeta Dhingra. All aforesaid documents were seized and accused was arrested and he was personally searched. SI Nobat Singh prepared a rukka and handed over it to HC Hans Kumar for registration of FIR. Subsequently, FIR in question was CA No.53/2013 2/13 registered.
After registration of FIR, SI Nobat Singh prepared the site plan, recorded disclosure statement of accused, recorded statements of witnesses and took accused alongwith case property in PS. He deposited the case property in Malkhana and subsequently, on next date this case was transferred to Insp. Raj Kumar for further investigation.
Insp. Raj Kumar during investigation recorded the disclosure statement of accused and raided the house of accused at Muradabad from where 3 more passports bearing No. P481299, B012284, Q606003 (and it copy bearing No.P-502850) were recovered, which were seized. He took the specimen handwriting with signatures of accused on the passports received from him for comparison to FSL. Subsequently, on 05.02.1999, this case was transferred to SI Sameer Shrivastava.
SI Sameer Shrivastava during his tenure as IO made efforts to collect the FSL Report, made verification of antecedents of accused. Subsequently, case was transferred from him.
iii) After completion of investigation, SHO PS R.K. Puram filed the charge-sheet against accused u/s. 420/468/471 IPC r/w Sec. 12 of Passport Act before the Ld. Trial Court/Ld. MM and accused/appellant was consequently summoned. Charge for the offences under Sections 420/468/ 471 IPC r/w Sec. 12 of Passport Act was framed against accused/appellant to which accused pleaded not guilty and claimed trial. CA No.53/2013 3/13
iv) The prosecution in support of its case examined as many as 5 witnesses i.e. PW1 HC Hans Kumar, PW2 Retired SI Nobat Singh, PW3 SI Sammer Shrivastava, PW4 Insp. Raj Kumar and PW5 Insp. R.S. Gotewal.
v) Accused/appellant in his statement under Section 313 Cr.P.C. denied all the incriminating evidence. Accused taken the defence that he was coming from Muradabad to Delhi in a bus carrying Rs.2,50,000/- in cash for purchasing some raw material. When he crossed Gaziabad, one person in civil dress caught him by collar and subsequently, took him to PS R.K. Puram where present case was planted on him. He was confronted with a complaint written by his wife Smt. Mehzabi Alam in the PS, which he had refused as he did not accept the writing of the said complaint, belonging to his wife. It was the grudge of his cousin Fahmood Hassan @ Sehjad, who was a secret informer of police, which led to the registration of false case against him.
vi) Accused/appellant led the defence evidence and examined himself as DW1.
vii) The Ld. Trial Court after hearing the final arguments, vide its impugned judgment dated 23.07.2013 convicted appellant/accused of the CA No.53/2013 4/13 offences punishable under Sections 420/468/471 IPC r/w Section 12 of Passport Act and vide order on sentence dated 12.08.2013 sentenced appellant/accused as follows:-
a) 420 IPC - 3 years RI and fine of Rs.10,000/- b) 468 IPC - 3 years RI and fine of Rs.10,000/- c) 471 IPC - 3 years RI and fine of Rs.10,000/- d) 12 of Passport Act - 2 years RI and fine of Rs. 5,000/-
All the above mentioned sentences have been directed to run concurrently.
3. Aggrieved by judgment and order on sentence dated 23.07.2013 and 12.08.2013, appellant/accused has preferred the present appeal on the grounds mentioned below.
It is stated that Ld. Trial Court has failed to appreciate the version of the appellant, who stated the same on oath, after entering into the witness box as a defence witness.
It is stated that Ld. Trial Court has failed to appreciate that whole of the prosecution case heavily relied upon the alleged recovery of passports but recovery of same was highly doubtful and same is apparent from examination of PW4 Insp. Raj Kumar who is alleged to have recovered the said passports from the search of appellant's residential house, however, in cross examination, he stated that passports were handed CA No.53/2013 5/13 over by the appellant himself and no search of his residential premises was conducted.
It is stated that even the testimony of PW1 and PW2 in respect of alleged apprehension of the appellant and alleged recovery of passports at Bhikaji Cama Place is doubtful as there is no independent witness to this aspect.
It is further stated that there are material contradictions in the testimonies of the prosecution witness which go to the root of the case.
It is further stated that even if story of alleged recovery is admitted, appellant cannot be held guilty of alleged offences because prosecution did not place on record any evidence to the effect that they were used by appellant or were going to be used by him.
It is further stated that Ld. Trial Court was erred while observing that FSL Report Ex.A2 is a conclusive proof in view of the same having been admitted. It is contended that at the time of said admission, the counsel was not present and said document being a legal and official document, not related to appellant at all, the same cannot be taken as conclusive proof of the fact, when the same was being disputed during the course of arguments, more particularly when the law permits the court of supersede the said FSL report by its physical examination.
It is further stated that once the appellant was convicted for the offence punishable u/s 12 of the Passport Act, he could not be CA No.53/2013 6/13 convicted for offences punishable u/s 420/468/471 IPC since the same amounts to double jeopardy.
It is further stated that on the fact and circumstances of the case, the offence u/s 420/468/471 IPC are not made out.
It is further stated that the sanction for prosecution for the offence punishable u/s 12 of the Passport Act could not be relied upon since the same was not proved before the Ld. Trial Court as per law.
It is further stated that Ld. Trial Court has failed to appreciate that appellant did not caused any monetary loss to anybody even on the basis of prosecution story.
It is further stated that appellant is the sole bread earner of his family and is in his fag end of his life, suffering from old age ailments. It is further stated that appellant has been facing trial for the last about 14 years.
In view of above, it is prayed that impugned judgment dated 23.07.2013 and order on sentence dated 12.08.2013 passed by Ld. MM be set aside and appellant/accused be acquitted.
5. Arguments on appeal already heard.
6. In the arguments, counsel for accused/appellant stated that police personals who have apprehended and seized the material have not CA No.53/2013 7/13 followed the procedure established by law and since they violated the procedure, appellant is entitled to be acquitted. It is further stated that there is allegation of concealment of vital information by the appellant. However, in the whole file, there is no evidence produced by the prosecution to show that appellant has concealed any vital information. It is further stated that since there is no record or evidence regarding use of passport, atmost appellant can be convicted under Passport Act and not under Section 420/468/471 IPC. It is further stated that appellant is the sole bread earner of his family and suffering from various ailments and facing trial for the last about 14 years and sentence be modified on this very ground. It is further stated that sanction obtained by the prosecution cannot be relied as the same was not proved.
7. On the other hand, it is stated by the Ld. APP that there is no infirmity in the impugned conviction judgment dated 23.07.2013 and order on sentence dated 12.08.2013 and rather gravity of offence shows that appellant be given more sentence then the sentence awarded by the Ld. Trial Court.
8. I have seen the trial court of record, grounds of appeal and considered the arguments advanced and my inference is that there is no infirmity in the impugned judgment dated 23.07.2013 and order on CA No.53/2013 8/13 sentence dated 12.08.2013 passed by the Ld. MM and present appeal be dismissed on the following grounds:-
FINDINGS ON IMPUNGED JUDGMENT DATED 23.07.2013 Firstly, on 19.10.2012, the Ld. MM conducted proceedings under Section 294 Cr.P.C. wherein appellant/accused has admitted the Copy of FIR Ex.A1, FSL Report i.e. No. FSL 99/D-0159 dated 06.09.2010 Ex. A2, Specimen handwriting signatures and handwriting Ex.A3 (collectively), Sanction order dated 27.11.2003 Ex.A4 and Passport of Naseem Alam bearing No. J9924013 Ex.A5.
Once he has admitted the Sanction order dated 27.11.2003 Ex.A4, now in the appeal appellant/accused cannot be allowed to deny the same or to challenge the same.
Secondly, when accused/appellant was searched on apprehension, he was found in possession of cash of Rs.2,45,000/- in his bag, 8 drafts (6 drafts of Rs.40,000/- each and two drafts of Rs.30,000/- each). This fact has not been denied by the appellant showing that he has admitted to be in possession of this much of amount and drafts on that date, though he has taken the defence that he was not arrested from Bikaji Cama Place but at the border of U.P. Anyhow, the recovery of amount and drafts is an admitted fact.
CA No.53/2013 9/13
Thirdly, Ld. MM has noted that all the police officials concerned who had recovered the passports in question, identified the passports Ex.P1, Ex.P2, Ex.P4, Ex.P5 and Ex.P6 in their testimonies. I have seen the trial court record. Each of the PW has corroborated this fact which has not been shakeen during cross examination or proved otherwise.
Fourthly, it is further proved on record that passport Ex.P1 to Ex.P6 were issued to the appellant and obtained by him after filling necessary forms as per Passport Rules, 1980. It is further proved on record that in each of aforesaid passport, the date of birth of accused was different. This shows that appellant/accused himself has given the particulars falsely. Hence, filling of the false information in the forms is a proved fact and obtaining the passport on false information is also a proved fact.
Perusal of passports shows that appellant was on constantly visited to different Countries of the world. Therefore, it is proved that appellant not only got issued the different passports but also used the said passports. Hence, the allegations under Section 420/468/471 IPC have been proved against appellant beyond reasonable doubt.
Fifthly, keeping or getting issued more than one passport is CA No.53/2013 10/13 an offence. In the present case, the appellant had not only got issued number of passports but also used the same by travelling extensively.
Sixthly, it is further proved on record that appellant was instrumental in obtaining passports Ex.P1 to Ex.P6 based on false information pertaining to his date of birth as the Ld. MM has recorded in page no.14 of the impugned judgment that in passport Ex.P1 accused claimed himself to be Naseem Khan born in Jabalpur on 06.08.1955, while in Ex.P2, he claimed himself to be Naseem Alam born in Muradabad on 21.02.1959, in Ex.P4 accused claimed himself to be Mohd. Naseem born in Muradabad on 10.04.1959, in Ex.P5 he claimed himself to be Mohd. Naseem born in Muradabad on 21.01.1959, in Ex.P6 he claimed himself to be Aslam Khan born in Muradabad on 01.11.1959 and in Ex.A5 accused claimed himself to be Naseem Alam born in Muradabad on 21.02.1959.
It may be noted that the all the passports were issued by different Regional Passport Authorities which shows that appellant made application to different authorities and got issued fake/duplicate passports on false information and used the same.
Seventhly, Appellant stated that he was arrested at the instance of his wife. However, there is no evidence on record to show or proved this fact.
CA No.53/2013 11/13
On the basis of above findings, I find no infirmity in the judgment/ conviction of accused vide judgment dated 23.07.2013. FINDINGS ON IMPUNGED ORDER ON SENTENCE DATED 12.08.2013 So far order on sentence is concerned, my inference is that Ld. MM has awarded lesser punishment to the appellant/accused. However, at this stage, this Court refrain itself for increasing the sentence.
It appears that Ld. MM has not passed any order regarding undergoing sentence in default of payment of fine. It is clarified that for each sentence for which fine of Rs.10,000/- is imposed, appellant shall undergo further sentence of 20 days in case of default to pay the fine and for each sentence for which fine of Rs.5,000/- is imposed, appellant shall undergo further sentence of 10 days in case of default to pay the fine.
9. In view of above, I find no infirmity in the impugned judgment dated 23.07.2013 and order on sentence dated 12.08.2013 passed by the Ld. MM. The present appeal is accordingly dismissed.
10. Let the custody warrants be issued against accused/appellant and he be sent to judicial custody for completing his sentence as awarded by the Ld. MM vide order on sentence dated 12.08.2013 and as modified CA No.53/2013 12/13 by this Court i.e.
a) 420 IPC - 3 years RI and fine of Rs.10,000/-
in default of payment of fine to undergo sentence of 20 days.
b) 468 IPC - 3 years RI and fine of Rs.10,000/- in default of payment of fine to undergo sentence of 20 days. c) 471 IPC - 3 years RI and fine of Rs.10,000/- in default of payment of fine to undergo sentence of 20 days. d) 12 of Passport Act - 2 years RI and fine of Rs. 5,000/- in default of payment of fine to undergo sentence of 10 days.
All the above mentioned sentences to run concurrently. Benefit of Section 428 Cr.P.C. be given to appellant/accused.
7. TCR be sent back alongwith copy of this judgment. Copy of this judgment be given dasti to accused/appellant free of cost.
8. Appeal file be consigned to record room.
Announced in the open court (Daya Prakash)
on 9th May, 2014 ASJ-02/FTC, PHC/NDD
09.05.2014
CA No.53/2013 13/13