Delhi District Court
Sh. Arun Gupta vs State (Cbi) on 22 July, 2014
IN THE COURT OF SH. NARINDER KUMAR
ADDITIONAL SESSIONS JUDGE(CENTRAL): DELHI
Criminal Appeal No.19/14
In the matter of:
Sh. Arun Gupta
S/o Sh. Babu Ram Gupta,
R/o 192, IIIrd Floor, Bank Enclave,
Laxmi Nagar, Delhi 92. ....Appellant
Versus
State (CBI) ....Respondent
Date of Institution: 04.06.2014
Date of Judgment: 22.07.2014
J U D G M E N T
Present revision petition has been filed against judgment of conviction dated 05.05.2014 and order on sentence dated 15.05.2014 passed by Learned Chief Metropolitan Magistrate in RC No.05/92, PS CBI/SPE/SIUXII/ND registered for offences under Section 120B read with Section 465, 471 IPC and 25 91) read with Section 3 of the Antiquities & Art Treasures Act, 1972 (hereinafter referred to as "the Act").
2. Vide impugned judgment dated 05.05.2014, appellantaccused has been convicted of offences under Section 120B read with Section 465, 471 IPC 1 read with Section 25 (1) of the Act but vide order on sentence dated 15.05.2014, sentenced as under: "a. For offence punishable under Section 120 B IPC, RI for six months.
b. For offence punishable under Section 465 IPC, RI for six months.
c. For offence punishable under Section 471 IPC, RI for six months.
d. For offence punishable under Section 25 (1) of the Antiquities and Treasures Act, RI for six months.
In addition to aforesaid, convict is also directed to pay a fine of Rs.50,000/. In default of payment of fine, SI for one month. All the sentences ordered to be run concurrently. Benefit of Section 428 CrPC be given to the convict."
So, he has been sentenced for two additional offences i.e. under Section 465 & 471 IPC though not convicted thereunder.
Vide order dated 27.01.2001, charge for the aforesaid offences was framed against the accused. The accused pleaded not guilty and claimed trial.
3. Accusation levelled against the accusedappellant is that he and one Bruce Miller, a worldwide antiquity dealer, from USA working for M/s Spink and Sun Ltd., 57, King's Street, Saint James, London (UK) kept in possession and was found unlawfully attempting to export following three antiquities:
1. Part of pillar depicting Dharmchakra and other decorated motifs, stones, size 129 x 26.6 cm.
2. Part of pillar depicting stupa and other decorated motifs, Stone, size 93.5 x 20.5 cm, and
3. Seated Jain Thirthankara in Dhyana mudra on a pedestal, stone, size 31 x 25.7 cm.
2 All these antiquities were seized by the custom department on 01.05.1992 at Indira Gandhi International Airport New Delhi. Additional Collector (Customs), IGI Airport, New Delhi complained on the aforesaid allegations.
Investigation revealed that attempt to export the aforesaid antiquities was made by a firm M/s Nova Fashions having its office at C211/A, Siddhartha Extention, Bhogal, Ashram, New Delhi vide customs shipping bill no. 19082 dated 30.04.1992.
Arun Gupta, accusedappellant is alleged to have presented the consignment of six packages containing the aforesaid items, before the custom authorities as CHA. The antiquities were to be exported to M/s Martin C/o Raindow Airfreight Mill and Industrial Estate Unitx, Stains, Middleses, UK. When checked, the consignment was found to contain aforesaid three antique items.
As further alleged in the complaint, investigation revealed that Arun Gupta accusedappellant signed the invoice and shipping bills on behalf of M/s Nova Fashions by forging signatures of his brother in law Sh. Anil Kumar Jain, one of the partners of M/s Nova Fashions.
Sanction for prosecution for the offence under the Act 1972 was obtained. Accordingly, challan was put in Court.
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4. In order to prove its case, prosecution examined following 15 witnesses: PW1 Sh. D. V. Sharma PW2 Sh. Madan Mohan PW3 Sh. Sandeep Srivastava PW4 Sh. Surat Kumar Bhatnagar PW5 Sh. K. N. Madhok PW6 Sh. Narain Singh PW7 Sh. A. N. Zutshi PW8 Sh. Suresh Kumar PW9 Sh. O. P. Vashisht PW10 Sh. V. P. Sharma PW11 Ms. Renuka Mam, PW12 Sh. Sanjay Kumar Gupta PW13 Sh. R. K. Taneja PW14 Sh. D. D. Daga PW 15 Sh. Mohinder Singh
5. When examined under Section 313 CrPC, accusedappellant claimed himself to be a "custom clearance agent" of M/s Nova Fashions. He also admitted his relationship with Sh. Anil Kumar Jain, one of the partners of M/s Nova Fashions.
As per defence plea of the accusedappellant, partners of M/s Nova Fashions used to look after affairs of the firm. As regards consignment, the defence plea put forth by the accused reads as under: "I am a custom clearing agent. I was handed over the consignment and documents by M/s Nova Fashion. I filed the papers with the custom 4 authorities and deposited the consignment with custom authorities. The shipment was cleared by Sh. Sandeep Srivastava, Assistant Commissioner, Custom, without verification. When I was in the process of loading the consignment in the Aircraft, I was detained from doing so by the orders of Sh. Narayan Singh, Inspector, Custom. Thereafter, the consignment was checked and the statements were recorded by the custom authorities. The consignment was confiscated and I was allowed to go. I came to know of this case in October, 1992, when the Custom officials came to arrest me. I am innocent."
Initially the accused opted to lead evidence in defence. But ultimately he did not lead evidence.
6. Vide impugned judgment, Learned Chief Metropolitan Magistrate has observed sufficient material on record to substantiate the version of the prosecution. It has been held that from the evidence of PW4 Sh. Surat Kumar Bhatnagar, it stands proved that it is the accusedappellant who signed the shipping bill without any authority of CHA.
While finding that Arun Gupta accusedappellant conspirsed with Bruce Miller, (Proclaimed offender) with a view to export the antiquities articles to foreign countries i.e. United Kingdom by forging certain documents, Trial Court has held the accused guilty of the aforesaid offences and ultimately convicted him in the manner indicated above.
7. Arguments heard. File perused.
8. As noticed above, case of prosecution is that the accused got booked on 30.04.92 consignment of six packages purported to contain artistic handcrafts 5 of brass, wooden, iron and stone artwares for the purpose of export to United Kingdom vide shipping bill no.190811 dt.30.04.92 but when the shipping bill was processed and packages were brought to export shed where the consignment was checked by the concerned officer and found to be items of antique nature.
On the other hand, plea of the accused, as put forth in statement U/s 313 Cr.P.C. that he was "custom clearing agent" and M/s. Nova Fashion handed over to him consignment and documents which he submitted to the custom authorities while depositing the consignment, but he was detained when he was in the process of loading consignment.
One of the charges framed against the accused is U/s 25(1) of the Act. Sanction for prosecution of offence U/s 25(1) of The Antiquities and Art Treasures Act, 1972
9. Learned counsel for appellant has contended that this is a case where prosecution failed to prove sanction for prosecution of the accused - appellant for an offence U/s 25(1) as required U/s 26(1) of the Act and as such the conviction recorded by Learned Chief Metropolitan Magistrate for the offence under this Act deserves to be set aside. In support of his submission, learned counsel for appellant has referred to decision in S. Harnam Singh V. The State (Delhi Admn.), (1976) 2 SCC 819.
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Sec.26 of the Act provides that no prosecution for offence under sub section 1 of Sec.25 of the Act shall be instituted except by or with the sanction of such officer of government as may be prescribed in this behalf.
Available on record is sanction order dt.30.12.94 passed by Sh. S.K. Mahapatra, Secretary of Government of India, Ministry of Human Resources Development, Department of Culture & Director General of Archaeological Survey of India for prosecution of the accused for an offence U/s 25(1) read with Sec.3 of the Act in this case. In order to prove sanction for prosecution of this offence, prosecution was required to examine Sh. S.K. Mahapatra, the concerned officer of Government who passed this order. Admittedly, he was neither examined nor cited as one of the witnesses in the list of witnesses submitted by prosecution.
It is well settled that point of sanction can be advanced at any stage. Therefore, the accused could raise before this court point in issue i.e. legal bar for the prosecution for want of sanction U/s 26(1) for the offence U/s 25(1) of the Act.
Learned Chief Metropolitan Magistrate also referred to decision in Electrical Manufacturing Company Ltd. V. D.D. Bhargava, 1968 SCR (1) 394, relied on by Special Additional P.P., to hold that the objection raised on the point of sanction was not sustainable.
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In Electrical Manufacturing Company Ltd.'s case, applicability of Sec.6 of Imports and Export (Control) Act 1947 was involved. Sec.6 of the Act of 1947, provides for taking cognizance of offence punishable under this Act, only on "complaint" made by or under the authority of the appropriate Government.
Therein, Hon'ble Apex Court observed that the Section, with which the court was concerned, does not contain any requirement regarding obtaining of "sanction", on the basis of which alone a complaint can be filed, to enable the court to take cognizance of an offence. Hon'ble Supreme Court referred to decision in Jaswant Singh V. State of Punjab, (1958) SCR 762 wherein it was held that sanction under Prevention of Corruption Act, 1947 was not intended to be, nor was an automatic formality, and it was essential that the provisions in regard to sanction should be observed with complete strictness, as the object of the provision for sanction is that the authority, giving the sanction, should be able to consider, for itself, the various facts alleged, before it comes to the conclusion that the prosecution, in the circumstances, be sanctioned or to be confined to the facts of that case.
Learned Chief Metropolitan Magistrate has observed that no objection was raised by the accused at the time of taking cognizance or at the time of framing of charge and not even not during trial. Learned Chief Metropolitan Magistrate also referred to presumption as available under illustration (e) of Sec.114 of Evidence Act to observe that court may presume existence of 8 judicial and official act which has been regularly performed.
As regards illustration (e) available U/s 114 of Evidence Act, learned Chief Metropolitan Magistrate has himself observed that presumption is rebuttable. Herein, as noticed above, prosecution did not take any step to cite concerned officer of the government who passed sanction order and then to examine him as a witness.
Herein, sanction was required to be proved, when the witness was not examined, accused had no opportunity to crossexamine him. In absence thereof, it cannot be said if the officer considered himself all the facts alleged for the purpose of Sec.26(1) of the Act. Therefore, this Court finds merit in the contention raised by learned counsel for the appellant that prosecution failed to prove before the Trial Court sanction for prosecution of offence under Section 25 (1) of the Act, 1972. As a result, conviction of the appellant recorded by the Trial Court for this offence under Section 25(1) of the Act, 1972, deserves to be set aside. It is ordered accordingly.
Other Charges under Section 120B read with Section 465/471 IPC and 465 & 471 IPC Offence U/s 465 & 471 IPC
10. So far as offence U/s 465 and 471 IPC are concerned, it may be mentioned that charge in the case was ordered to be framed vide order dt. 30.07.1999 for offences U/s 120 B read with Sec.465/471 IPC & 25(1) read 9 with Sec.3 of the Act and not for offence U/s 465 & 471IPC. But on 27.01.2001 charge was somehow framed from the offences U/s 465 & 471 IPC.
This Court has gone through the Trial Court record to find out if the order dated 30.07.1999 was modified vide any subsequent order before framing of the charge on 27.01.2001. No such order is there for modification on the point of charge. Therefore, no charge for offences under Section 465 & 471 IPC could be framed against the accusedappellant. In terms of order dated 30.07.1999, charge only for offence under Section 120B read with Section 465 & 471 IPC could be framed against him, in addition to the charge under Section 25 (1) of the Act of 1972.
11. A perusal of the impugned judgment would reveals that learned Chief Metropolitan Magistrate has held the accused guilty for offences under Section 120B read with Section 465/471 IPC, in addition to the offence under Section 25 (1) of the Act, 1972 but somehow sentenced him for substantive offences under Section 465 and 471 IPC, which could not be done. The accused appellant could not be put to trial for offence under Section 465 & 471 IPC when he was charged only for the substantive offence under Section 25 (1) of the Act of 1972. As a result, the order on sentence by the Trial Court for the offence under Section 465 and 471 IPC deserves to be set aside. The same is accordingly set aside.
12. Learned counsel for appellant has contended that prosecution did not 10 examine Anil Kumar Jain, whose signatures, the accused - appellant is alleged to have forged on the shipping bill and accompanying documents. Further, it has been submitted that prosecution failed to establish that the accused - appellant had any dishonest intention or intent to defraud any other person.
Learned counsel for appellant has also submitted that before the Trial Court, prosecution examined only one witness i.e. the expert witness to prove that accused - appellant signed on the shipping bill and the accompanying documents as Anil Kumar Jain. The contention is that Trial Court could not rely only on the sole testimony of the expert so as to hold him liable for an offence U/s 465 & 471 of the Act. In support of his contention, learned counsel for appellant has referred to decision in Sukhvinder Singh & Ors. V. State of Punjab, (1994) 5 SCC 152, Magan Bihari Lal V. The State of Punjab, (1977) 2 SCC 210; Smt. Bhagwan Kaur V. Sh. Maharaj Krishan Sharma & Ors., (1973) 4 SCC 46 In Sukhvinder Singh's case (supra), Hon'ble Apex Court observed as under : "The specimen writings in the instant case of the appellant were taken under the directions of TehsildarExecutive Magistrate. No enquiry or trial was pending in his court. The direction given by the TehsildarExecutive Magistrate to the accused to give his specimen writing was clearly unwarranted and not contemplated or envisaged by Section 73 of the Evidence Act. Failure of the accused to raise objection when he was called upon to give his specimen writing or his silence could not clothe the 11 TehsildarExecutive Magistrate with any jurisdiction to issue the directions as envisaged by Section 73 of the Evidence Act. The specimen writing of the accused could not, therefore, be made use of during the trial and the report of the handwriting expert, when considered in the light of the foregoing discussion, is rendered of no consequence at all and could not be used against the accused to connect him with the crime."
In Rakesh Kumar Vs. State, 2004 (109) DLT 130, decision in Sukhvinder's case has been followed.
In support of his contention that contents of documents have to be proved on admissible evidence and not necessarily by the author of the document. In support of this contention, learned counsel has referred to decision in Ramji Dayawala & Sons (P) Ltd. V. Invest Import, (1981) 1 SCC
80. In Ramji Dayawala & Sons (P) Ltd.'s case (supra), Hon'ble Apex Court held as under : "Undoubtedly, if the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence, i.e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue. In that case, the principal officer and the attorney of the appellantcompany referred to the averments in the letter and the cable sent by the Managing Director of the appellant. Once the receipt of the letter and the cable are admitted or proved coupled with the fact that even after the dispute arose and before the suit was filed, in the correspondence that ensued between the parties, the respondent did not make any overt or covert reference to the arbitration agreement and utter failure of the respondent to reply to the letter and cable controverting the averments made therein would unmistakably establish the truth of the 12 averments made in the letter. Hon'ble Apex Court did not find any force in the contention."
In Magan Bihari Lal's case (supra), Hon'ble Apex Court held as "Expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. There is profusion of precedential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law. This type of evidence, being opinion evidence, is by its very nature, weak and infirm and cannot of itself form the basis for a conviction." On the other hand, learned Special P.P. has referred to decision in Murari Lal V. State of M.P., 1980 Cri.L.J. 396, wherein Hon'ble Apex Court observed as under : "Expert testimony is made relevant by Sec.45 of the Evidence Act and where the Court has to form an opinion upon a point as to identity of handwriting, the opinion of a person 'specially skilled' in questions as to identity of handwriting is expressly made a relevant fact."
13. It has also been submitted that prosecution did not examine before the Trial Court anyone from M/s Nova Fashions to prove that the shipping bill and the accompanying documents were not sent by them for the purpose of booking of consignment or that the same did not bear signatures of Anil Kumar Jain. Further, it has been pointed out while examining PW Sanjay Kumar Gupta, one of the partners of M/s. Nova Fashions, prosecution did not question him on the aspect that the papers in question did not bear signatures of Anil Kumar Jain.
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As an alternative to the aforesaid submission that prosecution failed to prove before the Trial Court obtaining of specimen / admitted signatures of the accused - appellant for the purpose of comparison with the dispute signatures. Learned counsel for appellant has submitted that even if it is assumed for the sake of arguments that appellant put signatures on the shipping bill of Anil Kumar Jain, in absence of any complaint from Anil Kumar Jain it cannot be said that accused - appellant committed any offence U/s 465 IPC.
14. On the other hand, learned P.P. has submitted that accused could examine Anil Kumar Jain in support of his defence that shipping bill and accompanying documents were bearing his signatures but he failed to examine him, and as such there is no merit in this contention raised by learned counsel for appellant.
Learned P.P. has also submitted that by examining PW9 Sh. O.P. Vashist, prosecution proved that specimen signatures of Arun Gupta accused
- appellant were obtained in his presence on sheets no.1 to 20 Ex.PW9/B. Learned counsel for appellant has pointed out that on sheets no.1 to 20 said to have been signed by PW9, there is no mark "Ex.PW9/B" about which PW9 so deposed and as such, it cannot be said that the witness proved the specimen signatures obtained on any such sheet. It has further been pointed out that specimen sheets have been got exhibited as Ex.PW15/B3, but PW9 could not establish identity of the person who put his signatures on these 14 sheets.
It is submitted by learned counsel for appellant that even IO did not seek permission from the court before obtaining the specimen signatures of the accused. Furthermore, there is no endorsement appended to these sheets that these specimen signatures were of Arun Gupta.
On the other hand, learned P.P. submits that it appears that these sheets were not marked as Ex.PW9/B at the time PW9 was examined in court, and that none can suffer for the mistake of court.
As regards identity of the accused - appellant, it has been submitted that PW9 duly established the same while appearing in court as the person who has put his specimen signatures on these sheets Ex.PW9/B. So far as endorsement recorded by IO is concerned, learned P.P. submits that at the top of the sheets it finds specifically mentioned that as to whose specimen signatures these sheets belong to.
15. PW5 Sh. K. N. Madhok was serving as supervisor of KLM Airlines. This airline used to carry goods of custom to various destination. The witness explained that cargo was sent to airport for clearance and thereafter kept inside the custom warehouse. However, on seeing the airway bill dated 30.04.1992, witness could not identify as to whose signatures this bill prepared by Daga Air Agent on behalf of KLM Airlines was bearing. 15
PW14 Sh. D.D. Daga was in the profession of cargo air agents. He was examined to prove memo Ex.PW14/1 dt.01.10.93, vide which he produced original booking endorsement given by M/s. Nova Fashions through M/s Panthers International Service, Laxmi Nagar. According to this witness, these booking instructions Ex.PW14/2 were handed over to him by the accused, partner of Panther International Services. The witness identified the accused present in court. He also proved h is attestation on memo Ex.PW14/1, vide which he produced airway bill Ex.PW14/3, booked in his office on the instructions of the accused. After the airway bill was prepared, according to the witness, it was handed over to subagents M/s. Panther Services for further directions.
PW4 Sh. Surat Kumar Bhatnagar, proprietor of S.K. Bhatnagar & company, had the custom license issued by custom department in the year 1989. According to this witness, he was agent of Customs and his job was to clear customs shipment from the customs. He explained that except him none was authorized to sign the shipping bill.
According to the witness, the accused - appellant was employed as a Clerk in his company from 02.09.91. As regards HCard, which is a non signing card, he stated that it was issued to him. He surrendered this card to custom authorities for cancellation. This card was valid only for one year. 16
As regards the consignment in question, PW4 stated that accused - appellant did not take any permission from M/s. Nova Fashion and the said shipment was cleared without consent.
As regards signatures appearing at point A on the shipping bill Ex.PW2/A, Surat Kumar stated that these were of the accused. He also identified signatures of the accused at point A on document Mark A. PW12 Sh. Sanjay Kumar Gupta one of 'partners' of M/s Nova Fashion deposed about floating of Company in the name & style of M/s Nova Fashion with his friends / classmates Anil Jain and Rajiv Jain. It was floated for export purposes. He was only a sleeping partner in M/s. Nova Company whereas Anil Jain, the other partner, was looking after the firm.
Further, according to the witness, accused - appellant, brotherinlaw - Jija of Anil Jain was helping him (Anil Jain) in conducting affairs of the said firm. The witness identified the accused present in court on that day. He also identified his signatures and signatures of other partners Anil Jain and Rajiv Jain on the account opening form Ex.PW12/A. This account opening form was produced before the Investigating Officer Ex.PW13/A. PW13 Sh. R.K. Taneja proved this letter Ex.PW13/A. PW11 Ms. Renuka Maan, Commissioner Central (Excise) was examined to prove complaint Ex PW11/A made at the behest of customs.
PW9 Sh. O.P. Vashist was examined to prove his signatures on 17 Ex.PW9/A. He also proved his signatures on the counter foil of cheque book no.378801 to 378825. Then he deposed about attestation on seizure memo on 15.09.93. It is in the statement of PW9 that he had to put his signatures on sheets no.1 to 20 in presence of Arun Gupta accused.
PW8 Sh. A.N. Zutshi was examined to prove sheets Ex.PW7/A1 to Ex.PW7/A6 typed by him by way of specimen of the print of typewriter Remington no.H302450/D. He also proved his signatures at point A. According to this witness, he had typed all the sheets as directed by Sh. Suresh Kumar Palta, Manager of Universal Typewriter Company where he was employed during those days.
Sh. Suresh Kumar from Universal typewriter was examined as PW8. On seeing shipping bill dated 03.03.1993 Ex PW8/A, witness identified signatures of his brother Rajesh Kumar Palta on bill Ex PW8/A. PW8 also deposed about credit note Ex PW8/B in favour of Sh. B. R. Gupta. Then, he deposed about cheques dated 01.03.1993 and 3.03.1993. He also proved seizure memo Ex PW8/B prepared in his presence and attested by him.
It is in the statement of PW8 that specimen impression of key of old remington type writer as available in sheet Ex PW7/A1 to 6, was obtained by CBI Officer in his presence.
PW15 Mahender Singh, is the expert from the office of Questioned Documents, Government of India. He proved his report Ex.PW15/C with 18 reasons Ex.PW15/E on analysis of following documents received at his office from the office of SP CBI SIU XII vide letter ex.PW15/A:
1. Documents stamped and marked Q2, Q15, Q19 and Q19A on Ex.PW6/B, Q3, Q16, Q20 and Q20A on ex.PW15/B1, Q4, Q5, Q8 to Q11, Q17, Q21 and Q21A on Ex.PW15/B2, Q6, Q12, Q22 and Q22A on Ex.PW14/2, Q1, Q7, Q13, Q14, Q18 and Q18A on Ex.PW2/A.
2. Specimen writing/signature purported to be of Sh. Arun Gupta stamped and marked S1 to S30 Ex.PW15/B3 to B32.
3. Specimen writing/signatures purported to be of Sh. Anil Kumar Jain stamped and marked S31 to S47 Ex.PW15/B33 to PW15/B49.
4. Specimen type writings from Remington Machine no.H302540/D stamped and market S48 to S53 Ex.PW7/A1 to PW7/A6.
16. According to the witness, on careful and thorough documents, he gave his opinion Ex PW15/C. As per opinion of the expert, person who wrote the red enclosed writings and signatures stamped and marked S31 to S47 did not write the red enclosed signatures similarly stamped and marked Q1 to Q6.
Further that person who wrote the red enclosed writings and signatures stamped and marked S1 to S30 and A1 to A6 also wrote the red enclosed writings and signatures similarly stamped and marked Q1 to Q12.
The typewriting in the red enclosed portions stamped and marked Q13, Q14 and Q16 tallied with the sampled typewritings similarly stamped and marked S48 to S53.
Expert further opined that it was not possible to express any definite opinion on rest of the items on the basis of material supplied. 19
Although, prosecution has led evidence regarding obtaining of specimen signatures of the accused for its comparison with the disputed signatures, in view of decision in Sukhvinder Singh's case (supra), this Court finds merit in the contention raised by learned counsel for appellant that the specimen signatures/handwriting of the accused appellant obtained during investigation could not be made use of during trial and as a result, report of the handwriting expert, is of no consequence at all and could not be used against the accused to connect him with crime.
In the given situation, decision in Murari Lal's case (supra) cited by learned Special Public Prosecutor does not come to the help of the prosecution.
Charge for the offence under Section 120B read with Section 465 and 471 IPC and 25 (1) read with Section 3 of the Act of 1972
17. As per accusation levelled against the accused, in the charge framed on 27.01.2001, he conspired with others to export the three antiquities, forging export papers.
In this regard, prosecution has relied on statements of PW6 Sh. Narain Singh, PW2 Sh. Madan Mohan, PW10 Sh. V. P. Sharma, PW1 Sh. D. B. Sharma and PW3 Sh. Sanjay Srivastava.
PW6 Sh. Narain Singh, Inspector deposed that while on duty on 30.04.1992 he examined the subject consignment in presence of Sh. V. P. 20 Sharma and CHA Arun Gupta. According to this witness, all the packets of subject consignment were got opened and examined in the Air Cargo Complex. He identified the case property as Ex PW1/2 to Ex PW1/4. According to this witness, after he examined the case property, Assistant Commissioner Custom Sh. Sandeep Srivastava also saw the consignment and ordered to get the same examined from Deputy of A.S.I., Dharambir Sharma whose office was situated in the Air Cargo Complex.
Sh. Dharambir Singh, came and examined the consigned and put marking regarding suspicion of those items being antiques. He (Sh. Dharmabir Sharma) also marked the same to his senior officer for expert opinion.
According to PW6, on 01.05.1992, he seized articles and prepared memo Ex PW6/A in presence of Sh. Mahesh Kaushik and Sh. Satish Sharma, on the directions of senior officer. Witness identified his signatures and signatures of independent witness and those of Arun Gupta. He also deposed about shipping bill Ex PW2/A, proved signatures of Sh. V. P. Sharma on Ex PW2/B and those of C. Vaid on Ex PW2/C. Witness also deposed about seizure of invoice Ex PW6/B, packing list, G. R. Form, Airway bill of KLM Royal Dutch Airlines and IATA bill, partnership deed of exporter Rajiv Jain, Anil Kumar Jain and Sanjay Kumar Gupta.
PW2 Sh. Madan, Superintendent, Custom and Export Cargo, deposed 21 before the Trial Court that w.e.f. March, 92, his duties were to clear export consignment while posted at JAL Warehouse. So far as the aforesaid shipping bill dt.30.04.92 is concerned, the witness stated, after having gone through the same and the annexures that these were processed by Sh. Chakrobarty Vaid, Superintendent. He identified the signatures of Sh. Chakrobarty Vaid. Then, he identified the signatures of Sh. V.P. Sharma, Superintendent and of Sh. Chakrobarty Vaid on Ex.PW2/B and Ex.PW2/C. He also deposed about recording of statement Ex.PW2/D to Ex.PW2/P. PW10 Sh. V. P. Sharma was then serving as Superintendent Custom in the Export Section of IGI Airport during the period from July, 1991 to May, 1992. His duty, according to this witness, was to mark papers to different Inspectors for execution of goods meant for export. He was required to handle two shipping bills i.e. white and green. He also used to send report of the Inspector of the shipping bill to Superintendent of Custom for finalization of papers. On seeing shipping bill Ex PW1/A, witness deposed that the same was marked to ASI Department for confirmation of goods and further that they confirmed that these were antiques. Witness proved his signatures on Ex PW1/A. Further according to PW10, Sh. Sandeep Srivastava ordered for seizure of goods and Inspector Kanhiya deposited the same in the strong box Ex A1. It is also in the statement of this witness that these antiques cannot be 22 exported, their export having been banned by Government of India.
A. C. (Export) had ordered the Inspector to seize goods and record statement of Sh. Arun Gupta. Accordingly, these goods were seized and matter was reported to A. C. (Export) after the needful was done.
He also identified the case property Ex PW1/2 to 4 i.e. the three antique pieces, which according to him were taken out on opening the consignment and examined by Sh. D. V. Sharma, Deputy SA of ASI. Further according to him, the object of consignment was seized by Inspector Narain Singh.
PW1 Sh. D.V. Sharma, is the then Deputy Superintendent, Archaeologist, at IGI Airport. According to this witness, his duty was to examine the objects and advise custom whether the same were antiquities or nonantiquities, then to refer the matter to Director General, Archaeologist Survey of India, Janpath, New Delhi for expert advise.
Further, according to the witness, when he examined objects under reference he declared that five pieces were suspected to be antiquities. He then referred the matter to Director General for final expert advise. The witness also proved his report Ex.PW1/A. He identified the antiquities as Ex.PW1/2 to Ex.PW1/4.
In his cross examination, the witness admitted that out of the five pieces which he suspected to be antiquities, two pieces were found to be non antiquities by the Director General.
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PW3 Sh. Sanjay Srivastava, was serving as Assistant Commissioner, Air Cargo Unit. He has also deposed about aforesaid shipping bill Ex.PW2/A. According to this witness, after the shipping bill filed by M/s. Nova Fashion in the central registered unit was processed, the goods were brought to the export shade for export. On examination, the concerned officer of Archaeological Survey of India, it was found that some of the items were antique. Therefore, consignment was stopped and matter was investigated. Further, according to th is witness, consignment of antiques was sought to be exported on a shipping bill while there was no export license.
From the evidence of the aforesaid witnesses, it stands established that the consignment presented with the shipping bill referred to above, by the accusedappellant, when checked, was found to contain five items. To prove that these five items included three antiquities, prosecution was to examine Dr. I. K. Sharma, Director General, Archaeological Survey of India. Despite ample opportunities, prosecution could not secure presence of Dr. I. K. Sharma, the witness could not be examined by the prosecution or crossexamined by the accused as to his opinion contained in his report that the three items, out of the five sent to his office, were actually antiquities. It is not case of the prosecution that prosecution could not secure presence of Dr. I. K. Sharma. It was duty of the prosecution to secure his presence when the Trial Court granted sufficient time and even by way special opportunity while allowing its application under 24 Section 311 IPC. Since prosecuiton failed to avail of the opportunity and did not examine Dr. I. K. Sharma, it can safely be said that prosecution could not rely on the statement of PW1 Sh. D. V. Sharma so far as opinion given by Dr. I. K. Sharma is concerned.
18. Even otherwise, to establish charge of conspiracy, prosecution has to prove an agreement between the accused and his coaccused to do one or the other act as alleged by the prosecution. It has been observed that there is alway difficulty in tracing the precise contribution of each member of conspiracy and that an agreement among the conspirator can be inferred by necessary implication when required facts are proved. However, whatever be the incriminating circumstances, same have to be established by reliable evidence and they must form full chain whereby a conclusion about commission of criminal conspiracy can safely bet drawn.
In other words criminal conspiracy cannot be assumed from a set of unconnected facts or from a set of under exhibited by different persons at different places and time without reasonable link.
Herein, prosecution was to establish that the accused appellant entered into an agreement with his coaccused (since proclaimed offender). Prosecution has not led any evidence that any point of time, accused appellant contacted the coaccused (since proclaimed offender) or entered in any criminal conspiracy for the purpose of export of antiquities without any license. 25 In absence of any evidence that the accused ever agreed with his coaccused (since proclaimed offender) that together they would accomplish the unlawful object of conspiracy charge of criminal conspiracy does not stand proved. Prosecution has led evidence that the accusedappellant forged signatures of Sh. Anil Kumar, one of the partners of M/s Nova Fashions, on the shipping bills, with intent to export the consignment and he used the papers bearing forged signatures of Sh. Anil Kumar for this purpose, but the consignment could not be exported. Simply from this act of the accusedappellant, it cannot be said that he and his coaccused Bruce Miller (since proclaimed offender) entered into any criminal conspiracy either for the purpose of forgery or for the purposes of using the aforesaid documents bearing forged signatures of Sh. Anil Kumar, with intent to export antiquities beyond India.
19. As a result, this court finds that the judgment of conviction recorded by the Trial Court for the offence under Section 120B read with Section 465 and 471 and 25 (1) read with Section 3 of the Act, 1972 deserves to be set aside. I order accordingly.
20. Consequently, this appeal is allowed and the judgment of conviction and order on sentence passed by the Trial Court are hereby set aside.
21. Trial Court record be returned. Appeal file be consigned to Record Room.
Announced in Open Court
on 22.07.2014 (Narinder Kumar )
Additional Sessions Judge(Central)
Delhi.
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