Delhi District Court
State vs . Sheetal Kumar Singh & Another on 11 February, 2013
State vs. Sheetal Kumar Singh & another
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDL. SESSIONS JUDGE-01(CENTRAL):DELHI
SC No. 04 of 2010
ID No. 02401R0373952009
FIR No. : 22/2009
PS : Special Cell
U/S : 18/20 Unlawful Act
STATE
VERSUS
1. Yogendra Singh Bhokta @ Soren @ Vinay @ Shiv Kumar
S/o Sh. Hiraman Singh Bhokta
R/o Tola-Rugud, Village Bandaru
Post-Lowalong, PS Simaria,
Distt. Chatra, Jharkhand.
(His case has been separated vide order
dated January 30, 2010 by the Court of Ld. CMM)
........Accused No.1
2. Sheetal Kumar Singh
S/o Sh. Sham Dev Singh
R/o Village Mujheeama, PO Banke Bazar,
PS Domaria, Distt. Gaya Bihar.
........Accused No. 2
3. Satish @ Vinod @ Pappu
S/o Sh. Bandhu Singh
R/o Village Sorunawadi,
PO Lawalong, PS Simaria,
Distt. Chatra, Jharkhand
........Accused No. 3
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State vs. Sheetal Kumar Singh & another
Date of Institution : 13.08.2009
Date of Committal to Sessions Court : 11.02.2010
Date of judgment reserved on : 01.02.2013
Date of pronouncement of judgment : 11.02.2013
Present Sh. R.K. Tanwar, learned Additional Public Prosecutor for
the State
Sh. Sujit Jaiswal, Advocate, counsel for both the accused
persons
J U D G M E N T:
1. Briefly stated facts of prosecution case are that in the month of February 2009, a letter was received from Mr. Jain Narwal ASP-cum-SDPO District Chatra, Jharkhand regarding the arrest of Zonal Commander Yogendra Ganjhu stating that he was in Delhi. The said letter was assigned to SI Umesh Barthwal for necessary action.
(i) It was alleged that on May 3, 2009 at about 9 pm, ACP Sanjeev Kumar Yadav had received a call from SI Umesh Barthwal that he had apprehended three wanted Naxalities of banned outfit CPI (Maoist) namely Yogendra Ganjhu @ Soren @ Vinay, Satish @ Vinod @ Pappu and Sheetal Kumar Singh. Accordingly, investigating officer, ACP Sanjeev Kumar Yadav reached the house i.e. H. No. A-100/4, Gagan Vihar, near Moladband School, Meetha Pur, Badarpur, Delhi where SI Umesh Barthwal along with his team met there and handed over the copy of rukka and three above accused persons.
(ii) It was alleged that in his letter, Mr. Jatin Narwal, ASP-cum-SDPO intimated the Delhi police that accused Yogendra Ganjhu @ Soren @ Vinay had sustained bullet injury in his knee and he was getting treatment in Delhi SC No. 04/2010 Page no. 2 of 38 State vs. Sheetal Kumar Singh & another and he was using cell phone No. 9313509551 to contact his fellow Naxalities in Chatra (Jharkhand) and Sheetal Kumar Singh and Satish @ Pappu @ Vinod were his associates in Delhi. It was further alleged that accused Yogendra Ganjhu was wanted in case No.38/03 in District Chatra (Jharkhand) wherein warrants had been issued against him and he was also wanted in number of other cases. It was alleged that the calls detail of said mobile connection were analysed and it was revealed that the said connection was in the name of Manoj Kumar r/o D-41, Pul Prahladpur Badarpur, New Delhi having its location most of the time in the area of Meethapur. However, on discreet enquiry, it was revealed that no person in the name of Yogendra, Satish and Sheetal was staying at the given address. It was further revealed that Manoj Kumar used to live there as a tenant and had left the said premises but his whereabouts could not be traced out. In order to ascertain the information and to trace out the suspects, the said mobile phone was put up on interception after obtaining the necessary order from the competent authority. .
(iii) It was alleged that during interception, it was revealed that the said mobile connection was being used by three persons namely Satish, Sheetal and Vinay and it was further revealed that they were communicating with their associates and they were members of some Naxal groups and police was chasing them. It was further revealed that Vinay while recuperating from his injury, was also found organizing the activities of his group. Accordingly, sources were deployed in the area of Meethapur Extn. to enquire about the location of the suspect. It was alleged that on May 3, 2009, a team under the supervision of SI Renu Yadav was deputed to develop the information. It was alleged that at about 6.30 pm, a secret information was received to SI Umesh Barthwal in his office on phone that the secret informer had located a person of given description as SC No. 04/2010 Page no. 3 of 38 State vs. Sheetal Kumar Singh & another of accused Yogendra Ganjhu staying in the area of Gagan Vihar, near Moladband School, Delhi. Accordingly, a team was constituted under the supervision of Insp. Lalit Mohan and the team left for Gagan Vihar in two private cars at about 7 pm and they reached Meethapur Extn. at about 8 pm where secret informer met SI Umesh Barthwal. Thereafter, the secret informer led the police team to the house No. A-100/4, Gagan Vihar, near Moladband School, Meethapur, Badarpur, Delhi. Though request was made to 8-10 public persons to join the raiding party but none came forward and went away without disclosing their identity. The inmates of nearby houses were also asked to join the police party but since all were ladies, they refused to join the police party at the pretext that they were alone and they had to take care of their children.
(iv) It was alleged that at about 8.30 pm, police party had cordoned off the house and SI Umesh Barthwal along with Insp. Lalit Mohan, Insp.
Hirdaya Bhushan, SI Chandrika Prashad, HC Rakesh Kothiyal and HC Sukhbir Singh entered the ground floor room and they found that one person was lying on the bed who disclosed his name as Yogendra Singh Bhokta @ Soren @ Vinay. Besides him, two other persons were also found in the room and they disclosed their name as Satish @ Vinod @ Pappu and Sheetal Kumar Singh. They were interrogated, thereafter, SI Umesh Barthwal informed ACP Sanjeev Kumar Yadav and apprehended all the three accused persons. He prepared a rukka for the offence punishable under Section 18/20 Unlawful Activities (Prevention) Act and sent Head Constable Sukhbir to lodge an FIR. In the mean time, investigating officer ACP Sanjeev Kumar Yadav also reached the spot. Accordingly, he handed over the accused persons and rukka to him.
(v) It was alleged that investigating officer ACP Sanjeev Kumar
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State vs. Sheetal Kumar Singh & another
Yadav interrogated all the accused persons one by one. It was alleged that mobile phone Nokia 6255 having reliance CDMA No.9313509551 was recovered from the possession of accused Yogendra which was on interception. Thereafter, he arrested accused Yogendra Singh Bhokta. After interrogation, accused Satish @ Vinod and Sheetal Kumar Singh were also arrested. Mobile phone make Nokia 6255 having reliance CDMA No. 9313509551, was also seized. Two other SIM cards; one of Airtel and another of Tata Indicom were also recovered from the possession of accused Yogendra. It was further alleged that on the search of accused Satish @ Vinod, one mobile phone make Nokia 2600 having Reliance GSM number 9015431027 was recovered from his possession.
(vi) It was alleged that the premises No. I-222, Deepawali Enclave, Gali No. 9, near Agwanpur, Faridabad, Haryana was also searched as accused persons were staying there as tenants and during search, one OPD card of Orthonova Hospital in the name of Shiv Kumar was found. It was alleged that accused Yogendra was getting treatment in the assumed name of Shiv Kumar.
(vii) It was alleged that after reaching Special Cell Office, accused persons were interrogated thoroughly and their disclosure statements were recorded. During the disclosure statement, accused Yogindra disclosed that the hide-out was provided by their associates Ram Kumar and Shashikant, both resident of Gaya, Bihar and the recovered mobile phone No. 9313509551 was actually belonged to their landlord Manoj who had given the same to him before leaving for his village in Bihar. It was alleged that Manoj Kumar was not aware about their involvement with CPI (Maoist).
(viii) It was alleged that on May 6, 2009 SI Kailash Yadav handed
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State vs. Sheetal Kumar Singh & another
over four CDs containing intercepted voice calls of accused persons while communicating with their associates. The said calls were made/received from mobile phone No. 9313509551. The transcription of said intercepted calls were prepared.
(ix) It was alleged that from the intercepted calls, it was revealed that the above three accused persons were in touch with their associates Vikas, Zonal Commander of CPI (Maoist). Accused Yogendra was talking about the members and keeping a tab of the activities of the organisation CPI (Maoist). The voice sample of accused Yogendra Singh Bhokta @ Soren @ Vinay @ Shiv Kumar and Satish @ Vinod @ Pappu were recorded in separate audio cassettes and the same were sealed and seized, thereafter, the same were deposited in Mal Khana of police station Special Cell. After obtaining the permission from the Court, voice sample of accused Sheetal Kumar Singh was also taken on May 26, 2009 in the presence of expert of CFSL, CBI, Lodi Road and the CD was seized.
(x) During investigation, the CDR and subscriber detail of mobile phone No. 9313509551 were obtained and on analysis, it was revealed that it was mostly in touch of telephone number of Bihar and Jharkhand. The CDR and subscriber detail of mobile phone number 9015431027 were also obtained and revealed that it was subscribed in the name of Faiyaz Ahmed and the Airtel SIM recovered from the possession of accused was found subscribed in the name of Akhilesh Kumar.
(xi) During investigation, treatment documents of Shiv Kumar were also seized from Orthonova Hospital. Accused Yogendra was found involved in 17 criminal cases wherein he has been mentioned as member of CPI (Maoist) also known as banned terrorist outfit Maoist Communist SC No. 04/2010 Page no. 6 of 38 State vs. Sheetal Kumar Singh & another Centre (MCC).
(xii) It was alleged that in the said FIR, accused Yogendra has been referred to as member of MCC now known as CPI (Maoist). It was further alleged that no previous involvement of accused Satish and Sheetal Kumar Singh was found. However, in the information-sheet of police station Simaria, Distt. Chatra, Jharkhand, accused Sheetal Kumar Singh has been mentioned as a known associate of accused Yogendra Singh Bhokta @ Soren @ Vinay @ Shiv Kumar and has also been mentioned as an active Zonal Commander of Maoist Communist Centre (MCC Maoist) and his name was also found in several cases of terrorist activities of PS Simaria.
(xiii) It was alleged that from the investigation, it was confirmed that accused Yogendra is an active member of banned terrorist organisation MCC now known as CPI (Maoist) and involved and wanted in several terrorist activities including attack on police party along with other member of banned terrorist organisation MCC.
(xiv) The exhibits were sent to the FSL and result was obtained which confirmed the intercepted calls. Thereafter, sanction was obtained under Section 45 of Unlawful Activities (Prevention) Act from the competent authority. It was submitted that search of their associates namely Ram Kumar and Shashikant who had made arrangement for their stay in Delhi and provided financial aid to them was being made.
2. After completing investigation, challan was filed against the above three accused persons for the offence punishable under Section 18/20 of Unlawful Activities (Prevention) Act and it was submitted that further investigation is under way under section 173 (8) Cr.P.C and SC No. 04/2010 Page no. 7 of 38 State vs. Sheetal Kumar Singh & another supplementary charge-sheet will be filed later on. However, it is pertinent to state that no supplementary charge-sheet has not been filed in this case till date.
3. Since, accused Yogendra Singh Bhokta @ Soren @ Vinay @ Shiv Kumar was not produced from Jharkhand jail despite repeated production warrants were issued by the Court of learned Chief Metropolitan Magistrate, Delhi, accordingly, the case of accused Satish @ Vinod @ Pappu and Sheetal Kumar Singh was separated vide order dated January 30, 2010. Thereafter, their case was committed to the Court of Sessions on January 30, 2010. Thereafter, the case was assigned to the Court of Sh. K. S. Mohi, the then learned Additional Sessions Judge on February 11, 2010. Accordingly, the case was registered as Sessions Case No. 4/2010
4. Vide order dated January 11, 2011, a charge for the offence punishable under Section 20 & 18 of Unlawful Activities (Prevention) Act was framed against accused Satish @ Vinod @ Pappu and Sheetal Kumar Singh to which both accused persons pleaded not guilty and claimed trial.
5. In order to bring home the guilt of the accused persons, prosecution has examined as many as following 24 witnesses.
PW1 ASI Ranjit Kumar, witness of voice sample of the accused persons.
PW2 SI Kailash Chand Yadav, witness of voice sample of accused persons.
PW3 Insp. Umesh Barthwal, initial investigating officer
PW4 HC Sukhbir Singh, member of the raiding party
PW5 HC Randeep Singh, formal witness, deposited the
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State vs. Sheetal Kumar Singh & another
exhibits in FSL
PW6 Sh. Manoj Kumar, landlord of the accused persons
PW7 Dr. A. K. Singh, proved the medical papers of accused
Yoginder Bhokta
PW8 Sh. Akhlesh Kumar, formal witness
PW9 Sh. Fiaz Ahmed, formal witness
PW10 Mr. Jatin Narwal, complainant, the then ASP, SDPO, Chattra, Jharkhand PW11 Mr. Mahesh Kumar Jain, Sr. Scientific Asstt., CFSL PW12 Dr. C. P. Singh, proved the FSL report PW13 Sh. Ashish Kumar, SDM, Civil Line, conveyed the sanction granted by the Lt. Governor of Delhi PW14 Sh. D. K. Sharma, proved the interception order PW15 Sh. Chotte Lal, proved the medical papers of accused Yogender Bhokta PW16 SI Rishi Pal Singh, formal witness of voice sample PW17 Sh. Vishal Gaurav, Nodal officer PW18 Sh. Sanjeev Lakra, Nodal officer PW19 Sh. Vishal Gaurav, Nodal officer PW20 ASI M. Baxla, MHC(M) PW21 Sh. Amber Lakra the then DSP, Chattra, Jharkhand PW22 SI Raj Dev Rai, formal witness PW23 Insp. Chandrika Prasad, member of the raiding party PW24 Sh. Sanjeev Yadav, DCP, investigating officer It is pertinent to state that Mr Vishal Gaurav has been examined inadvertently twice as PW17 and PW19. When he appeared in the witness box as PW17, his examination-in-chief was deferred and later on he was examined as PW19.
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6. Thereafter, both accused persons were examined under Section 313 Cr. P.C. wherein they denied each and every evidence led by the prosecution and submitted that they have been falsely implicated in this case. However, both the accused persons preferred not to lead evidence in their defence.
7. After final arguments, prosecution had moved an application for seeking permission to place fresh sanction qua accused persons under Section 45 of the Unlawful Activities (Prevention) Act, which was allowed vide order dated January 28, 2013. Thereafter, prosecution examined one more witness i.e. PW25 Mr. G. P. Singh, Additional Secretary (Home), Govt. of NCT Delhi. Thereafter, supplementary statement of accused persons under Section 313 Cr.P.C was recorded wherein they denied the additional evidence adduced by the prosecution and took the plea that they have been falsely implicated in this case. However, they refused to lead any evidence in their defence.
8. I have heard rival submissions advanced by counsel for both the parties and perused the record carefully. It is pertinent to state that neither of parties has cited any case law in support of his contentions.
Contentions relating to sanction:
9. Learned counsel appearing for the accused persons assailed the prosecution case by arguing sagaciously that the prosecution has launched prosecution against the accused persons on the basis of defective sanction. Though in order to remove the said defect, prosecution has filed a fresh sanction during the trial, yet the same can not rectify the incurable defect in the prosecution case. It was submitted that since no Court had taken the SC No. 04/2010 Page no. 10 of 38 State vs. Sheetal Kumar Singh & another cognizance on the basis of fresh sanction, same is not helpful to the prosecution to rectify the inherent defect in the prosecution case.
10. Per contra, learned Additional Public Prosecutor refuted the said contentions by arguing that since prosecution has filed fresh sanction under Section 45 of Unlawful Activities (Prevention) Act, prosecution has rectified the defect in the previous sanction and there is no reason to discard the fresh sanction.
11. From the submissions raised by counsel for both the parties, question comes forth as to whether there was any defect in the original sanction. If yes, whether the defect was inherent? If the answer is in affirmative, whether the fresh sanction can rectify the inherent defect?
12. Before dealing with the contentions raised by learned counsel for the parties, I deem it appropriate to have a look over the relevant provisions of law. Section 45 of the UAPA runs as under:
45. Cognizance of offences.
(1) No court shall take cognizance of any offence:-
(i) under Chapter III without the previous sanction of the Central Government or any officer authorised by the Central Government in this behalf;
(ii) under Chapters IV and VI without the previous sanction of the Central Government or, as the case may be, the State Government, and where such offence is committed against the Government of a foreign country without the previous sanction of the Central Government.
(2)Sanction for prosecution under sub-section (1) shall be given within such time as may be prescribed only after considering the report of such authority appointed by the Central Government or, as the case may be, the State Government which shall make an independent review of SC No. 04/2010 Page no. 11 of 38 State vs. Sheetal Kumar Singh & another the evidence gathered in the course of investigation and make a recommendation within such time as may be prescribed to the Central Government or, as the case may be, the State Government.
(emphasis supplied)
13. Careful perusal of Section 45 reveals that sub-section (1) deals with the authority who can accord sanction for the offences committed under the Act whereas sub-section (2) deals with the procedure to be followed by the authority at the time of granting sanction. It is limpid from Section 45 (1) if the committed offence falls under Chapter III of UAPA, Court shall not take cognizance of the offence unless previous sanction is accorded either by the Central Government or by any other officer authorised by the Central Government in this behalf. And if the committed offence falls under the Chapter of IV and VI, Court shall not take cognizance of the offence unless previous sanction is granted by the Central Government or the State Government as the case may be. But if the committed offence is against the Government of a foreign country, Court shall not take cognizance without the previous sanction of the Central Government. In the instant case, offences punishable under Section 18 & 20 of UAPA falls under Chapter IV, thus sanction of Central Government or State Government as the case may be is required to prosecute the accused persons. In the instant case, being the Administrator of Delhi, Lt. Governor of NCT, Delhi had accorded the initial sanction to prosecute the accused. Thus, prosecution has satisfied the condition as recited under sub-section (1) of S. 45 of UAPA.
14. Sub-section (2) to 45 of the Act deals with the procedure how the Central Government or the State Government or the authorised officer of Central Government as the case may be shall accord sanction under sub-section (1). Sub-section (2) defines the procedure as under:
SC No. 04/2010 Page no. 12 of 38 State vs. Sheetal Kumar Singh & another
(i) That sanction shall be granted within the prescribed time;
(ii) That sanction shall be granted after considering the report of such authority, which shall be appointed by the Central Government or the State Government as the case may be;
(iii) That such authority shall make an independent review of the evidence gathered in the course of investigation;
(iv) That such authority shall make its recommendation within the prescribed time to the Central Government or the State Government as the case may;
15. Now, it becomes abundantly clear that firstly Central Government or the State Government, as the case may be, shall appoint an authority, which shall make an independent review of the evidences collected by the investigating agency in the course of investigation and thereafter such authority shall make its recommendation within the prescribed time to the Central Government or the State Government as the case may be. After considering the said report, sanction shall be accorded by the Central Government or its authorised officer or State Government as the case may be within the prescribed period.
16. Under Section 52 (2) (ee) Central Government is empowered to make rule in respect of the time within which sanction for prosecution and recommendation to the Central Government shall be given under sub- section (2) of section 45. In exercise of the power conferred under sub- section (2) of Section 52, Central Government has framed 'The Unlawful Activities (Prevention) (Recommendation and Sanction of Prosecution) Rules, 2008. Rule 3 & 4 are relevant and same are reproduced as under:
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3. Time limit for making recommendation by the Authority:- The Authority shall under sub-section (2) of section 45 of the Act make its report containing the recommendation to the Central Government or the case may be, the State Government within seven working days of the receipt of the evidence gathered by the investigating officer under the Code.
4. Time limit for sanction of prosecution:- The Central Government or, as the case may be, the State Government shall, under sub-section (2) of section 45 of the Act, take a decision regarding sanction for prosecution within seven working days after receipt of the recommendations of the Authority.
(emphasis supplied)
17. In the instant case, learned counsel appearing for accused persons contended that competent authority had not followed the procedure as mentioned under sub-section (2) at the time of according sanction, thus sanction was defective, which vitiates the trial. Thus, conundrum question arises as to whether the competent authority i.e. Lt. Governor had followed the procedure at the time of according the first sanction or not?
18. Indisputably, initially the sanction was accorded by the Lt. Governor of NCT of Delhi and the same was communicated by PW13 on July 30, 2009 and the sanction order is exhibited as Ex. PW13/A. PW13 Sh. Ashish Kumar, the then Deputy Secretary (Home), Government of NCT, Delhi appeared in the witness box but he did not depose that any such committee was appointed or that the recommendation of any such committee was placed before the Lt. Governor of Delhi. Perusal of the sanction order Ex. PW13/A establishes that the sanction order was granted only on the basis of draft charge-sheet, allegations made in FIR and other material and evidence placed on record. There is no reference of any authority appointed by the Central Government. Similarly, there is no SC No. 04/2010 Page no. 14 of 38 State vs. Sheetal Kumar Singh & another reference that the said authority had independently reviewed the evidences collected by the investigating agency. Similarly, there is no reference that such authority had made any recommendation to the Central Government or the State Government to grant sanction. In other words, there is no scintilla of evidence to show that the evidences collected by the investigating officer were independently reviewed by any authority appointed by the Central Government or State Government or that after review of such evidences, such authority had ever made any recommendation to the Central Government or the State Government as the case may be. It is pertinent to mention here that this Court may not have jurisdiction to examine whether the recommendation of competent authority was sufficient to accord sanction or not. But it is the bounden duty of this Court to examine as to whether any authority was appointed by the Government in terms of Section 45 (2) of UAPA and; to analyze as to whether such authority had reviewed the evidences collected by the investigating officer during investigation and; to examine whether such authority had made any recommendation to the Government to accord sanction against the accused and; also that the recommendation was made within the prescribed time and; that sanction was granted within prescribed time or not. But there is no infinitesimal evidence in this regard.
19. Needless to say, one of the main objects of imposing condition of independent review by an authority appointed by the Central Government or the State Government as the case may be, is to prevent the misuse of the stringent provisions of UAPA by the law enforcing agencies. Further, when legislature in its wisdom has prescribed a specific procedure to accord sanction, it is the pious duty of sanctioning authority to follow that procedure. But unfortunately, there is no iota of material on record to show prima-facie that the recommendation of any authority who SC No. 04/2010 Page no. 15 of 38 State vs. Sheetal Kumar Singh & another independently reviewed the evidences collected by the investigating authority was ever brought in the notice of Lt. Governor at the time of obtaining sanction under sub-section (1) of Section 45 of the UAPA. In other words, the sanctioning authority i.e. Lt. Governor of NCT of Delhi in the present case was deprived of the relevant material i.e. recommendation of competent authority, that was necessary to consider as to whether sanction should or should not be granted.
20. In view of the above discussion, I am of the considered opinion that there was inherent defect in the sanction order dated July 30, 2009 as the same was not in consonance with the mandatory provisions of Section 45 (2) of UAPA, thus sanction was not valid.
21. Now coming to the next question as to whether the defect is incurable and whether fresh sanction order dated January 11, 2013 (Ex. PW25/A) can remove the said defect or not?
22. By filing the fresh sanction in terms of Section 45(2) of UAPA, prosecution has admitted that the previous sanction was not in accordance with law. As already discussed that the previous sanction was not in accordance with mandatory provisions of Section 45(2) of UAPA, thus the same was not legal and valid.
23. Section 45 of the UAPA prohibits the Court to take cognizance of the offence unless the competent authority i.e Central Government, its authorised representative or State Government, as the case may be, accorded sanction in accordance with the provisions of Section 45 of the Act. Thus, real question is as to whether the cognizance order dated August 24, 2009 was in accordance with the provisions of Section 45 (1) of SC No. 04/2010 Page no. 16 of 38 State vs. Sheetal Kumar Singh & another the UAPA or not?
24. As already discussed that the previous sanction qua accused persons was not in accordance with the mandatory provisions of Section 45 (2) of UAPA, but the Court had taken the cognizance vide order dated August 24, 2009 believing that the sanction was in accordance with the law. Since, there was no valid sanction in terms of mandate of the law, Court was not competent to take cognizance qua the offence punishable under UAPA. Thus, the cognizance order dated August 24, 2009 was bad in law as it was in violation of the mandatory provisions of Section 45 (1) of UAPA.
25. Though prosecution has now filed fresh sanction dated January 11, 2013 (Ex. PW25/A) in terms of the mandatory provisions of Section 45 (2) of UAPA, yet no cognizance has been taken in the present case on the basis of said sanction order. Since, the said sanction was not in existence at the time of taking cognizance on August 24, 2009, question of considering the same by the Court at the time of taking cognizance of the offence does not arise. Mere fact that prosecution has filed fresh sanction order at this belated stage is not sufficient to make the cognizance order valid. Because mandate of law is that Court shall not take cognizance unless there is previous sanction in accordance with the provisions of Section 45(2) of UAPA and in the instant case there was no valid sanction when the cognizance was taken.
26. In case Rangku Dutta v. State of Assam, 2011 (3) JCC 1650 impugned conviction and sentence was challenged on the ground that the FIR was registered in violation of mandatory provisions of Section 20(A)(1) of TADA, which reads as under:
SC No. 04/2010 Page no. 17 of 38 State vs. Sheetal Kumar Singh & another 20-A Cognizance of offence - (1) Notwithstanding anything contained in the Code, no information about the commission of an offence under this Act shall be recorded by the police without the prior approval of the District Superintendent of Police.
Counsel appearing for the State took the plea that since the investigation was conducted by the DSP, therefore the requirement of section 20(A)(1) has been complied with. However, Apex Court rejected the said plea. Observations made in para 21, 23,24 and 29 are relevant, hence reproduced as under:
Para 21. It is obvious that Section 20(A)(1) is a mandatory requirement of law. First, it starts with an overriding clause and, thereafter, to emphasise its mandatory nature, it uses the expression "No" after the overriding clause. Whenever the intent of a statute is mandatory, it is clothed with a negative command.
Para 23. So there can be no doubt about the mandatory nature of the requirement of this Section. Apart from that, since the said section has been amended in order to prevent the abuse of the provisions of TADA, this Court while examining the question of complying with the said provision must examine it strictly.
Para 24. Going by the aforesaid principles, this Court finds that no information about the commission of an offence under the said Act can be recorded by the Police without the prior approval of the District Superintendent of Police. Therefore, the requirement of prior approval must be satisfied at the time of recording the information. If a subsequent investigation is carried on without a proper recording of the information by the DSP in terms of Section 20(A)(1), that does not cure the inherent defect of recording the information without the prior approval of the District Superintendent of Police. Whether the Deputy Superintendent of Police is a District Superintendent of Police or not is a different question which we need not decide in this case. But one thing is clear that the requirement of approval must be made at the initial stage of recording the information. If there is absence of approval at the stage of recording the information, the same cannot be SC No. 04/2010 Page no. 18 of 38 State vs. Sheetal Kumar Singh & another cured by subsequent carrying on of the investigation by the DSP. Reference in this connection is made to the principles laid down by Lord Denning speaking for the Judicial Committee of Privy Council in Benjamin Leonard MacFoy Versus United Africa Co. Ltd. [1961(3) Weekly Law Reports 1405]. Lord Denning, speaking for the unanimous Bench, pointed out the effect of an act which is void so succintly that I better quote him:
"If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse."
Para 29. Therefore, the entire proceeding right from the registering of the FIR, filing of the charge-sheet and the subsequent trial is vitiated by a legal infirmity and there is a total miscarriage of justice in holding the trial, ignoring the vital requirement of law. We have, therefore, no hesitation in setting aside the impugned judgment of the Designated Court."
(emphasis supplied)
27. From the above judgment, it becomes crystal clear that some defects are incurable and if any proceeding is initiated on such incurable defects, it is liable to be collapsed. In the instant case prosecution had built up its case on the foundation of invalid sanction (Ex.PW13/A), thus the proceedings initiated on the said sanction are bound to be collapsed. The said inherent and incurable defect can not be rectified by just simply filing a fresh sanction at the belated stage of the trial.
28. Pondering over the ongoing discussion, I am of the considered opinion that there was no valid sanction at the time of taking cognizance for the offence punishable under UAPA and the said incurable defect can not be rectified by filing the subsequent sanction.
SC No. 04/2010 Page no. 19 of 38 State vs. Sheetal Kumar Singh & another Contentions relating to the complaint Ex. PW3/A:
29. Learned counsel appearing for the accused persons vehemently contended that the entire prosecution case is based on the complaint dated February 20, 2009 (Ex. PW3/A) which was received by the Special Cell of Delhi Police on February 20, 2009 itself. As per prosecution version, the said complaint was sent by Mr. Jatin Narwal, the then ASP- cum-SDPO Chattra, Jharkhand, thus it was urged that it is next to impossible that the said complaint could be delivered at the office of Special Cell of Delhi Police on February 20, 2009. It was submitted that during trial, prosecution has failed to establish how the said complaint was delivered in the office of Special Cell on the same day from Chattra, Jharkhand to Delhi. It is submitted that the said complaint was procured later on just to create a false case against the accused persons.
30. Per contra learned Additional Public Prosecutor refuted the said contentions by arguing that there is no reason to disbelieve the said complaint because it was sent by a responsible police officer of Chattra, Jharkhand. However, he failed to explain through which mode the said complaint was delivered to the Special Cell of Delhi Police.
31. From the submissions made by the counsel for both the parties, question comes forth for adjudication as to whether the said complaint could be delivered in the office of Special Cell of Delhi Police on February 20, 2009 or not? To resolve the said controversy the testimony of PW3, PW10 and complaint Ex. PW3/A are relevant.
32. Perusal of the complaint Ex. PW3/A reveals that the same was received in the office of DCP Special Cell of Delhi Police on February 20, SC No. 04/2010 Page no. 20 of 38 State vs. Sheetal Kumar Singh & another 2009 vide receipt No. 1438. Thereafter, the same was put up before DCP Special Cell who assigned the same to ACP who further assigned the same to Insp. Negi. Thus, as per the said complaint, it was delivered in the office on February 20, 2009 and on the very same day it was assigned to Insp. Negi for doing needful. PW3 Insp. Umesh Barthwal in his cross- examination deposed that the said complaint was not received by him. However, it was assigned to him. He further deposed that the complaint was received in the office of Joint Commissioner on February 20, 2009. He further deposed that he could not tell who had delivered the said complaint in his office but deposed that he had received the same through dak. He further deposed that he did not know how the said letter was delivered in the office of Joint Commissioner. Thus, from his testimony it is clear that he did not know how the complaint Ex. PW3/A was delivered in the office of Joint Commissioner of Special Cell but he is sure that the said complaint was sent to him on February 20, 2009 through dak.
33. In his cross-examination PW3 further deposed that on perusal of complaint Ex. PW3/A, it was revealed that the same was written on February 20, 2009 but he did not sure whether the said letter was written in Jharkhand or not. He further deposed that the said letter was written on behalf of Mr. Jatin Narwal and he presumed so because the name of Mr. Jatin Narwal was mentioned at the end of said letter. Thus from his testimony it is clear that PW3 was not sure where the said letter was written but as per his testimony the said letter was written on behalf of Mr. Jatin Narwal but he was not sure whether it was written in Chattra, Jharkhand or somewhere else.
34. PW10 Mr. Jatin Narwal, the the ASP, SDPO, Chattra, Jharkhand is the author of complaint Ex. PW3/A. In his examination-in-chief, he SC No. 04/2010 Page no. 21 of 38 State vs. Sheetal Kumar Singh & another deposed that he had sent the complaint to Special Cell of Delhi Police on February 20, 2009. From his testimony it appears that the said complaint was sent from Jharkhand. In his cross-examination, he deposed that he had received the information on February 17, 2009 from his sources directly and within 5-6 hours of the receipt of said information, the information was verified from other sources. He further deposed that he did not reduce the said information in writing anywhere but he shared the said information with SP within 2-3 minutes. Thus, PW10 Mr. Jatin Narwal also failed to depose how the said complaint was sent to Delhi. He nowhere deposed that he had sent any special messenger by air to deliver the said complaint to the office of Special Cell of Delhi Police. Admittedly, the said complaint was not received in the office of Special Cell through Fax. If PW10 had even sent the said letter through special messenger by train, the special messenger could not be reached Delhi prior to February 21, 2009. Thus it was next to impossible that the said complaint could be delivered in the office of Special Cell of Delhi Police on February 20, 2009 as claimed by the prosecution. Hence, a reasonable doubt is cropped up over the genuineness and authenticity of the said complaint.
Contention regarding the alleged raid:
35. Learned counsel appearing for the accused persons strenuously contended that on the one hand, prosecution claimed that no public persons came forward to join the raiding party despite efforts made by them but on the other hand, prosecution claimed that Insp. Lalit Mohan had arranged the private vehicles for the purpose of raid. It was submitted that even no effort was made to join owners of the private vehicles who obliged the police officers by giving their cars for the purpose of raiding party. It was submitted that it is highly improbable that the police officials SC No. 04/2010 Page no. 22 of 38 State vs. Sheetal Kumar Singh & another who could arrange private cars easily would not be able to persuade public persons to join the raiding party, if they made sincere efforts.
36. Per contra learned Additional Public Prosecution controverted the said contentions by arguing that sincere efforts were made by the police officials to persuade public persons to join the raiding party but none came forward. He further submitted that since the cars were arranged by Insp. Lalit Mohan but he did not appear in the witness box, thus he can not say why the owners/drivers of the cars were not joined in the raiding party.
37. In this regard, the testimony of PW3 Insp. Umesh Barthwal and PW23 Insp. Chandrika Parsad are relevant.
38. Both witnesses in their examination-in-chief deposed that after reaching Meethapur Extension, PW3 Insp. Umesh Barthwal asked 4-5 passers by to join the raiding party but none came forward and they went away without disclosing their name and address. They further deposed that when they reached Gagan Vihar, PW3 Insp. Umesh Barthwal again asked public persons including neighbours to join the raiding party but none came forward. PW23 Insp. Chandrika Parsad in his cross-examination deposed that he did know the registration number of the cars that were used in the raid. He further deposed that the said cars were not officials. He further deposed that he did not even know whether the registration number of the cars were mentioned in the daily diary or not and further deposed that he did not ask the investigating officer why he was using the private cars. He further deposed that he did not know whether the private cars were arranged against the charges or otherwise and further deposed that he did not know whether the cars were arranged after receiving the secret information or prior to that. He further deposed that the cars were not in the SC No. 04/2010 Page no. 23 of 38 State vs. Sheetal Kumar Singh & another office premises of Special Cell and the same were called from outside. He further deposed that he did not know whether driver of the said cars were asked to join the raiding party or not and at last deposed that cars were arranged by Insp. Lalit Mohan. PW3 also in his cross-examination deposed that the said cars were arranged by Insp. Lalit Mohan thus, he could not say to whom the same were belonged to. He further deposed that he did not know whether the cars were personal cars of Insp. Lalit or he arranged the same from someone.
39. Thus, from the testimony of PW3 and PW23, it becomes crystal clear that the private cars were used in the raid and same were arranged by Insp. Lalit Mohan and the cars were called from outside and the same were not present in the premises of office of Special cell. In these circumstances, Insp. Lalit Mohan was a material witness for the prosecution but prosecution preferred not to bring him in the witness box, thus prosecution has failed to establish from where the said cars were arranged. From the testimony of PW3 and PW23, it is limpid that the cars were summoned from outside, it means that the said cars were driven by someone to the office of Special Cell of Delhi Police but surprisingly no efforts were made by the members of raiding party to join those drivers in the raid. It is surprisingly that police officials could arrange private cars immediately to conduct the raid and even the cars were delivered at their door step but the same police officials failed to persuade public persons including owner/drivers of the said cars to join the raiding party. This creates a reasonable doubt over the alleged genuine efforts made by the members of the raiding party to persuade the public persons to join the raiding party.
40. Fact of using official vehicles in the raid can be verified from the log book of the official vehicles but the same can not be verified if the SC No. 04/2010 Page no. 24 of 38 State vs. Sheetal Kumar Singh & another private vehicles are used deliberately. No doubt some time to maintain the secrecy of operation, use of private vehicles becomes mandatory but in such cases, extra precaution should be taken. But in the instant case, no such precaution was taken. Even the investigating officer did not deem it appropriate to mention the registration number of the cars in the departure entry; nor he mentioned the meter reading of the cars when it left from the Special Cell. Nor its metre reading was checked when they returned to the Special Cell office after completing the raid. In other words, there is no evidence whatsoever except the oral testimony of PW3 and PW23 that any vehicle was used in the raid. Similarly, there is no evidence on record to show how many miles the said cars had travelled on that day. Had the investigating officer maintained the log book of the said cars, it would provide immense help to the prosecution to clear doubt over the alleged raid.
41. Once the private vehicles are used in conducting the raid, it becomes the duty of the investigating officer to maintain the proper record of the vehicle but he failed to do so without any reasonable explanation. Moreover, by arranging the private vehicles from the unknown sources gives the impression that members of raiding party were able to arrange the private cars at the door step without wasting time but they failed to persuade the public persons including owners/drivers of the cars to join the raiding party. Thus, the version of prosecution on this count is nothing but a paradox, thus does not inspire any confidence. Since, the police officials failed to join any public independent witness and they also failed to produce the record of alleged private cars, their testimony is required to be examined minutely to ensure that accused persons have not been falsely implicated in this case.
SC No. 04/2010 Page no. 25 of 38 State vs. Sheetal Kumar Singh & another Contentions relating to non-compliance of the provisions of CR.P.C.:
42. Learned counsel appearing for the accused persons vigorously contended that the investigating officers did not comply with the mandatory provisions of Section 166 Cr.P.C at the time of taking search of the premises as no notice was given to the officer-in-charge of the police station under whose jurisdiction the said premsies fall. It was further submitted that investigating officer even entered the jurisdiction of Haryana without intimating to the local police; nor any intimation was given after search. It was submitted that these lapses further cast a doubt over the alleged raid as no public independent witness had witnessed the alleged raid.
43. On the converse, learned Additional Public Prosecutor refuted the said contentions by arguing that the investigating officers had not violated any mandatory provisions of law. It was submitted that efforts were made to join the public witnesses but none came forward, thus, there was no other option except to proceed wtih the matter.
44. In this regard the testimony of PW3 and PW24 are relevant. PW3 in his cross-examination deposed that he did not inform the local police about the raid; nor any intimation was sent to the local police after the raid. PW24 in his cross-examination deposed that the premises bearing no. I-222, Deepwali Enclave near Agwanpur Village falls within the jurisdiction of Faridabad, Haryana. He further deposed that he did not intimate the local police of his visit to the said property; nor he sent any intimation after search of the premises. Thus, it becomes abundantly clear that neither PW3 nor PW24 intimated the local police either before searching the premises nor thereafter. Now question arises as to whether SC No. 04/2010 Page no. 26 of 38 State vs. Sheetal Kumar Singh & another they had violated any mandatory provisions of law or not?
45. The above question is answered by Section 166 Cr.P.C., which runs as under:
166. When officer in charge of police station may require another to issue search-warrant:-
(1) An officr in charge of a police station or a police officer not being below the rank of sub-inspector making an investigation may require an officer in charge of another police station, whether in the same or a different district, to cause a search to be made in any place, in any case in which the former officer might cause such search to be made, within the limits of his own station.
(2) Such officer, on being so required, shall proceed according to the provsions of section 165, and shall forward the thing found, if any, to the officer at whose request the search was made.
(3) Whenever there is reason to believe that the delay occasioned by requiring an officer in charge of another police station to cause a search to be made under sub-
section (1) might result in evidence of the commission of an offence being concealed or destroyed, it shall be lawful for an officer in charge of a police station or a police officer making any investigation under this Chapter to search, or cause to be searched, any place in this limits of another police station in accordance with the provisions of section 165, as if such place were within the limits of his own police station.
(4) Any officer conducting a search under sub-section (3) shall forthwith send notice of the search to the officer in charge of the police station within the limi of which such place is situate, and shall also send with such notice a copy of the list (if any) prepared under section 100, and shall also send to the nearest Magistrate empowered to take cognizance of the offence, copies of the records referred to in sub-section (1) and (3) of section 165.
(5) The owner or occupier of the place searched shall, on application, be furnished free of cost with a copy of any record sent to the Magistrate under sub-section (4)."
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State vs. Sheetal Kumar Singh & another
(emphasis supplied)
46. It is evident from Section 166 Cr.P.C. that whenever a police officer conducts a search in the premsies located in the jurisdiction of another police station, after search such police officer is required to send a notice of the search to the officer in charge of local police station and shall also send the copy of notice along with the list of items seized to the nearest Magistrate empowered to take cognizance. Since, neither PW3 nor PW24 had sent any such notice to the local police either before taking the search or thereafter thus both the investigating officers i.e. PW3 and PW24 had violated the mandatory provisions of law without any reasonable explanation.
Contentions relating to the contradictions in the testimony of prosecution witnesses:
47. Learned counsel appearing for the accused persons astutely contended that there are lot of contradictions between the statements of prosecution witnesses. On the one hand prosecution witnesses deposed that accused Sheetal and Satish had no criminal antecedants but PW4 deposed that they had sketch of all the accused persons and they were showing the sketches to the public persons door to door and shop to shop but they could not get any information about them. He further pointed out that PW24 deposed that when he had taken the search of house located in Deepwali Enclave, accused Yogender Bhokta did not accompany them whereas other witnesses deposed that he also accompanied the police party. Further, PW24 deposed that the police party walked down from Gagan Vihar to Deepwali Enclave whereas other witnesses deposed that they went there in vehicle. He further pointed out that PW3 and PW23 deposed that when they apprehended the accused Yogendra Bhokta, he SC No. 04/2010 Page no. 28 of 38 State vs. Sheetal Kumar Singh & another had plastered in his leg whereas PW24 deposed that he did not have any plaster in his leg.
48. Per contra, learned Additional Public Prosecutor contended that the said contraditions are minor in nature and not sufficient to discard the prosecution case.
49. PW3 in his cross-examination deposed that when accused Yogender Bhokta was arrested he was unable to walk as his leg was plastered. PW23 corroborated the testimony of PW3 by deposing that accused Yogendra Bhokta had plastered in his leg. On the contrary, PW24 in his cross-examination deposed that there was no plaster either in the legs of Yogendra Bhokta or any other part of his body. He deposed that he had some injury in his hip but there was no plaster.
50. Further, PW3 in his cross-examination deposed that all the police officials left from Gagan Vihar together. Some police officials also sat in the Qalis car of ACP whereas other sat in two santro cars. PW23 also deposed that all police officials left for Deepwali Enclave in two cars and one Qalis. He further deposed that the distance between the house located at Gagan Vihar and the premises located at Deepwali Enclave was about 500 meters and the same was covered within 5-7 minutes. On the converse, PW24 in his cross-examination deposed that since the distance between above two premises could be covered within 5-7 minutes, he along with inspector Lalit Mohan, PW 23 and accused persons namely Sheetal and Satish walked down the said distance and further deposed that they stayed there for about 15 minutes and when they were ready to move, their vehicles reached there from Gagan Vihar and consequently they sat in the vehicles and proceeded towards their office. He further deposed that SC No. 04/2010 Page no. 29 of 38 State vs. Sheetal Kumar Singh & another Yogender Bhokta did not go to the premises no. I-222 Deepwali Enclave.
51. Further, PW23 deposed that when they reached I-222 Deepwali Enclave the room was locked but he did not know how the same was opened. However, he deposed that the key of the room was not seized. On the other hand, PW24 deposed that the room was unlocked. It it admitted case of the prosecution that accused persons were arrested from the property located at Gagan Vihar and thereafter accused led the police party to I-222 Deepwali Enclave. If it was so, it is quite implausible that they would keep the room unlocked.
52. Though there is contradiction between the testimony of prosecution witnesses on the point whether accused Yoginder Singh Bhokta had plastered on his leg or not, yet one thing clear from their testimony that Yogender Bhokta had some injury in his leg, due to which he was unable to walk without stick. Despite that investigating officer did not deem it appropriate to mention the said injury in his arrest memo. It is pertinent to state that investigating officer even did not deem it appropriate to prepare the body inspection memo of the accused persons. The purpose of preparing the body inspection memo is to highlight the old injuries found on the body of accused but there is no explanation why the investigating officer had not prepared the body inspection memo of the accused persons.
53. PW23 and PW24 in their cross-examination deposed that the house from where accused were apprehended was built up to second story. Despite that the investigating officers failed to persuade any occupant to join the proceedings. There is no explanation why the occupants were not asked to join the proceedings.
SC No. 04/2010 Page no. 30 of 38 State vs. Sheetal Kumar Singh & another
54. No doubt the above contradictions alone are not sufficient to discard the prosecution case. But the above contradictions coupled with other lapses in the prosecution become relevant to raise a doubt over the prosecution case.
Contentions relating to Section 18 & 20 of the UAPA:
55. Learned counsel appearing for the accused persons sagaciously contended that during investigation police failed to colllect any evidence against the accused persons except the intercepted conversations, transcriptions of which are exhibited as Ex. PW2/A to Ex. PW2/D. It was perspicaciously contended that even the said transcriptions are not sufficient to prove the culpability of accused persons under Section 18 & 20 of the Act. It was contended that even during the investigation police failed to ascertain the identity of the callers with whom accused allegedly talked for few minutes. It was urged that there is nothing in the alleged conversations which may help the prosecution to prove the culpability of the accused persons.
56. On the converse, learned Additional Public Prosecutor refuted the said contentions by arguing that the intercepted conversations prove that accused persons belonged to a banned terrorist organisation and they were involved in the conspiracy of the terrorist act.
57. At the outset, it is pertinet to state that prosecution has failed to produce any evidence to show that accused Sheetal and Satish were involved in any naxalities activities. Even in the charge-sheet it is recited that accused Satish and Sheetal Kumar have no criminal record except that in the information sheet of PS Simaria Distt. Chatra, Jharkhand accused SC No. 04/2010 Page no. 31 of 38 State vs. Sheetal Kumar Singh & another Sheetal has been mentioned a known associate of Yogender Singh Bhokta, Zonal Commander of Maoist Communist Centre. Admittedly, there is no admissible evidence to prove on what basis the said fact was mentioned in the alleged information sheet. Even during the trial, prosecution has failed to adduce any cogent evidence to establish that accused was a known associate of Yogender Singh Bhokta except that he was arrested along with Yogender Singh Bhokta.
58. Before dealing with the contentions raised by counsel for the parties, I deem it appropriate to have a look over the relevant legal provisions. Section 18 provides punishment for conspiracy etc. and same runs as under:
18. Punishment for conspiracy, etc- "Whoever conspires or attempts to commit, or advocates, abets, advises or (incites, directs or knowingly facilitates) the commission of, a terrorist act or any act preparatory to the commission of a terrorist act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine."
(emphasis supplied)
59. Thus, to prove the culpability of the accused persons for the offence punishable under Section 18 of the Act, prosecution has to prove beyond the shadow of doubt:
(i) that accused persons conspired; or
(ii) that accused persons attempted to commit; or
(iii) that accused persons advocated, abetted, advised; or
(iv) that accused persons incited, directed or knowingly
facilitated;
the commission of:
(i) a terrorist act; or
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State vs. Sheetal Kumar Singh & another
(ii) any act preparatory to the commission of a terrorist act.
60. Terrorist act is defined under Section 15 of the Act and same reads as under:
15. Terrorist act.- Whoever does any act with intent to threaten or likely to threaten the unity, integrity, security or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country,-
(a) by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substances (whether biological radioactive, nuclear or otherwise) of a hazardous nature or by any other means of whatever nature to cause or likely to cause-
(i) death of, or injuries to, any person or persons;
or
(ii) loss of, or damage to, or destruction of,
property; or
(iii) disruption of any supplies or services essential to the life of the community in India or in any foreign country; or
(iv) damage or destruction of any property in India or in a foreign country used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies; or
(b) overawes by means of criminal force or the show of criminal force or attempts to do so or cause death of any public functionary or attempts to cause death of any public functionary; or
(c) detains, kidnaps or abducts any person and threatens to kill or injure such person or does any other act in order to compel the Government of India, any State Government or the Government of a foreign country or any other person to do abstain from doing any act, commits a terrorist act.
Explanation:- For the purpose of this section, public SC No. 04/2010 Page no. 33 of 38 State vs. Sheetal Kumar Singh & another functionary means the constitutional authorities and any other functionary notified in the Official Gazette by the Central Government as a public functionary.
(emphasis supplied)
61. Section 20 provides punishment for being member of a terrorist organisation and same reads as under:
20. Punishment for being member of terrorist gang or organisation: "Any person who is a member of a terrorist gang or a terrorist organisation, which is involved in terrorist act, shall be punishable with imprisonment for a term which may extend to imprisonment for life, and shall also be liable to fine".
(emphasis supplied)
62. During investigation, officers of Special Cell in the name of evidence had only collected the intercepted conversations and the disclosure statements made before the police officers. First of all, I will deal with the alleged disclosure statements, which accused persons had allegedly made before the police officers. It is pertinent to state that the disclosure statements made before the police officer under Unlawful Activities (Prevention) Act is not admissible in evidence as the same is hit by Section 25 of Evidence Act. Admittedly, pursuant to the alleged disclosure statement there was no discovery of a distinct fact. Thus, the alleged disclosure statements have no evidentiary value in the eyes of law. Though prosecution and the investigating agency claimed that the alleged disclosure statements were made by the accused persons voluntarily, yet there is no explanation, if, the accused persons were ready to make a confessional statement voluntarily why their statements were not got recorded under Section 164 Cr.P.C. This further casts a doubt over the claim of the prosecution and investigating agency that accused persons had made the alleged disclosure statements voluntarily.
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63. Now coming to the alleged intercepted conversations,
transcriptions of which are exhibited as Ex. PW2/A to Ex. PW2/D. It is admitted case of the prosecution that the mobile number 9313509551, which was mentioned in the complaint Ex. PW3/A was put on surveillance on March 4, 2009. During the period March 4, 2009 to May 3, 2009, four calls were selected and the transcriptions of which are Ex. PW2/A to Ex. PW2/D.
64. As per Ex. PW2/A, a unknown caller had made a call from his mobile number 9472263665 to mobile number 9313509551 and the phone was picked up by Satish. From the transcription Ex. PW2/A it is clear that initially the call was attended by Satish thereafter Yogender Bhokta had talked with the caller. First of all, during trial prosecution has failed to establish the identity of the said caller. Thus, there is no evidence with whom accused Satish had talked. There is no explanation from the prosecution why the investigating agency had not ascertained the identity of the person who made a call from the said number. Thus, there is no hesitation to say that investigation is not up to the mark in this regard.
65. The duration of the said call was 18 minutes and 18 seconds. Initially, the caller had talked with Satish and as per Ex. PW2/A only six general queries were put by the caller, which were answered by accused Satish. Thereafter, Satish had handed over the phone to bhai and as per prosecution version the bhai was Yogender Singh Bhokta. The rest of the conversation is between Yogender Singh Bhokta and the unknown caller. During the conversation of unknown caller and Satish, there is no scintilla of evidence, which may help the prosecution to prove the culpability of the accused Satish either for the offence punishable under Section 18 or under SC No. 04/2010 Page no. 35 of 38 State vs. Sheetal Kumar Singh & another Section 20 of the Act.
66. Now coming to the next conversation, transcription of which is Ex. PW2/B. According to the prosecution, the said call was intercepted on March 9, 2009 at about 13:14:53 hours and the duration of the call was 7 minutes and 58 seconds and the call was made by unknown caller from mobile number 9472263665.
67. Initially the call was attended by Yogender Singh Bhokta, thereafter, he immediately handed over the phone to accused Sheetal. Thereafter, Sheetal had talked with the unknown caller. Perusal of the transcription reveals that the entire talk was on general topics. However, during the talk, caller informed Sheetal about the arrest of Mohit, Ashok, Bihari, and Aushtosh. But there is nothing on record, who were they i.e. Mohit, Ashok, Bihari and Aushtosh. Similarly, there is nothing on record in which cases they were arrested. Moreover, the said conversation did not show that accused Sheetal was involved in any of the acts in which the above said persons were arrested. At the most, from the said conversation it can be culled out that accused Sheetal got information about the arrest of some of his known persons but we did not know who were they and in which cases they were arrested. At the end of the conversation, Sheetal had handed over the phone to Satish, thereafter, caller talked with him about his studies. Thus, to my mind the said intercepted conversation is also not helpful to the prosecution in any manner to prove the culpability of the accused persons for the offence punishable under Section 18 and 20 of the Act.
68. Now turning to the next conversation, transcription of which is Ex. PW2/C. The said conversation was intercepted on April 1, 2009 at SC No. 04/2010 Page no. 36 of 38 State vs. Sheetal Kumar Singh & another about 18:08:05 hours and the duration of the call was 13 minutes 30 seconds and the call was made by unknown caller from his mobile phone number 9471239662 to mobile number 9313509551. Again in this case also, investigating agency failed to ascertain the identity of the caller, thus, it is not clear with whom accused had talked.
69. Perusal of Ex. PW2/C reveals that the initially call was attended by accused Sheetal and he had general talk and gossip with the caller, thereafter, Yogender Singh Bhokta had talked with the caller. Again at the end, the caller talked with Sheetal but this time also the conversation between them general. Said conversation is also not helpful to the prosecution in any manner to prove the culpability of the accused Sheetal for the offence punishable under Section 18 and 20 of the Act.
70. Now coming to the last conversation, transcription of which is Ex. PW2/D. The said conversation was intercepted on May 1, 2009 at about 15:51:20 hours and the duration of the call was 14 minutes and 17 seconds. The call was made by unknown caller from mobile number 9905708284 to mobile phone number 9313509551. As per Ex. PW2/D the entire conversation was between Yogender Singh Bhokta and the unknown caller, thus, the same is not relevant to prove the culpability of the accused Sheetal and Satish.
71. From the above, it becomes crystal clear that the alleged intercepted conversations are not helpful to the prosecution to prove the culpability of the accused Sheetal and Satish either for the offence punishable under Section 18 or under Section 20 of the Act. There is no other admissible evidence on record to prove the culpability of the accused SC No. 04/2010 Page no. 37 of 38 State vs. Sheetal Kumar Singh & another persons for the offence punishable under Section 18 and 20 of the Act.
Conclusion:
72. Mulling over the ongoing discussion, I am of the considered opinion that prosecution has failed to bring home the guilt of accused persons namely Sheetal Kumar Singh and Satish @ Vinod @ Pappu for the offence punishable under Sections 18 & 20 of Unlawful Activities (Prevention) Act, thus I hereby acquit both of them thereunder.
Announced in the open Court On this 11th day of February, 2013 (Pawan Kumar Jain) Additional Sessions Judge-01, Central, THC/Delhi SC No. 04/2010 Page no. 38 of 38