Delhi District Court
State vs . Naseem Alam on 23 July, 2013
IN THE COURT OF SHRI PRASHANT SHARMA,
METROPOLITAN MAGISTRATE 07,
PATIALA HOUSE COURTS, NEW DELHI.
Serial No. : 41/3/13 dated 04.03.2013
Unique Identification No. 02403R0995152004
State Vs. Naseem Alam
FIR No. 07/99
P. S. R.K. Puram
U/s 420/468/471/ IPC r/w section 12 of Passport Act.
JUDGMENT:
1.Srl. No. of the case & Date of institution 41/3/13 & 21.01.2004
2.Date of commission of offence 03.01.1999
3.Name of the complainant SI Nobat Singh
4.Name of the accused Naseem Alam, S/o Sh. Abdul Hassan, R/o Prince Road, Galshahid, Muradabad, U.P.
5.Nature of offence complained of U/s. 420/468/471/ IPC r/w section 12 of Passport Act.
6.Plea of the accused person Accused person pleaded not guilty
7. Date reserved for order 08.07.2013
8.Final Order Convicted
9.Date of such order 23.07.2013 Date of Institution : 21.01.2004 Date of order reserved : 08.07.2013 Date of pronouncement : 23.07.2013 FIR No.07/99 P. S. R.K. Puram Page No. 1 of 22 BRIEF FACTS OF THE CASE:
1. Passport is a valuable property which should be procured legally, as it has significance not only for the individual concerned, but also for the country.
2. The facts of the present case can be shortly stated as below.
3. On 03.01.1999, PW2 SI Nobat Singh was patrolling with PW1 HC Hans Kumar. Both of them, reached near Bhikaji Cama Place, R.K.Puram, where they met a secret informer, at about 7.007.15 pm, who told them that a person possessing fake passports will be coming in the said area shortly wearing black cap and carrying black bag. At that time, Ct. Mukesh and Ct. Rajender also met the aforesaid police officials. On receiving the aforesaid secret information, a raiding party consisting of above mentioned police officials was constituted. Public persons were asked to join the raiding team but none of them joined. Without wasting further time, aforesaid raiding team took their positions and at about 07.30 pm, accused wearing black cap and carrying black bag was apprehended by them at the instance of secret informer. On being searched, accused was found with possession of a cash of Rs. 2,45,000/, 8 drafts(i.e. 6 drafts of Rs.
40000/ each and 2 drafts of Rs. 30000/ each), 2 passports viz. Ex.P1 bearing no. 05347A, Ex.P2 bearing no. M226003 and its copy T2985545 and one order of the then Ld. ACMM, Ms. Sangeeta Dhingra, Ex.P3. The said order of the then Ld. ACMM, Ms. Sangeeta Dhingra, was objected to by the accused on the ground of admissibility. The said objection is dismissed at this stage, as the said order of the then Ld. ACMM, Ms. Sangeeta Dhingra was a public document, as per section 74 of Indian Evidence Act, which can be proved by leading secondary evidence as per section 65 of Indian FIR No.07/99 P. S. R.K. Puram Page No. 2 of 22 Evidence Act, which was done in this case. All the aforesaid articles/documents were seized vide seizure memo Ex.PW1/A to Ex.PW1/C. Accused was arrested and he was personally searched vide memo Ex.PW1/D. SI Nobat Singh prepared a rukka Ex.PW2/A and handed it to HC Hans Kumar for registration of FIR. Subsequently FIR in question Ex.A1 was registered.
4. After registration of FIR in question, SI Nobat Singh, prepared the site plan Ex.PW2/B, recorded disclosure statement of accused Ex.PW2/C, recorded statements of witnesses and took accused along with case property in PS. He deposited the case property in Malkhana and subsequently on next day this case was transferred to PW4 Inspector Raj Kumar for further investigation.
5. PW4 Inspector Raj Kumar, during investigation, recorded the disclosure statement of accused Ex.PW3/A and raided the house of accused at Muradabad, from where 3 more passports viz. Ex.P4 bearing no. P481299, Ex.P5 bearing no. B012284, Ex.P6 bearing no. Q606003 (and its copy bearing no. P502850) were recovered, which were seized vide memo Ex.PW4/B. He took the specimen signature of accused vide Ex.PW4/C and sent the specimen handwriting with signatures of accused on the passports received from him for comparison, to FSL. Subsequently, on 05.02.1999, this case was transferred to PW3 SI Sameer Shrivastava.
6. PW3 SI Sameer Shrivastava during his tenure as investigating officer made efforts to collect the FSL report, made verification of antecedents of accused. Subsequently case was transferred from him.
7. After completion of investigation, SHO PS R.K.Puram, filed the FIR No.07/99 P. S. R.K. Puram Page No. 3 of 22 charge sheet against accused U/s. 420/468/471/ IPC r/w section 12 of Passport Act.
8. After finding prima facie case against the accused, summons were issued against the accused by the court. Subsequently, charge U/s. 420/468/471/ IPC r/w section 12 of Passport Act was framed to which accused pleaded not guilty and claim trial and case was subsequently fixed for PE.
9. In order to prove its case the prosecution examined five witnesses. PW1 HC Hans Kumar, PW2 retired SI Nobat Singh, PW3 SI Sameer Shrivastava and PW4 Inspector Raj Kumar deposed in their testimonies, facts in consonance with the prosecution story, as mentioned above and not repeated here for the sake of brevity. PW5 Inspector R.S. Gotewal had deposed in his testimony that on 17.08.1997, he had affixed departure stamp on passport no. A2080261, belonging to passenger Naseem Khan, which was identified by him as Ex.P7, at FRRO, IGI Airport.
10.During prosecution evidence, accused admitted certain documents U/s. Proceedings U/s. 294 Cr.P.C. r/w section 313 (1) (a) of Cr.P.C and Sec. 281 Cr.P.C viz. FIR as Ex.A1, FSL report no. FSL 1999/D0159 dated 06.09.2010 as Ex.A2, his own specimen handwriting and signatures as Ex.A3 collectively, sanction order U/s. 15 of Passport Act as Ex.A4 and his own passport bearing no. J 9924013 as Ex.A5.
11. Subsequently, PE was closed.
12.Statement of accused was recorded, in which all the incriminating evidence was put to him. He refuted all the incriminating evidence led against him. As per his version, he was coming from Muradabad FIR No.07/99 P. S. R.K. Puram Page No. 4 of 22 to Delhi in a bus carrying Rs. 2,50,000/ in cash for purchasing some raw material. When he crossed Gaziabad, one person in civil dress caught him by collar and subsequently took him to PS R.K.Puram where present case was planted on him. As per him, he was confronted with a complaint written by his wife Smt. Mehzabi Alam in the PS, which he had refused as he did not accept the writing of the said complaint, belonging to his wife. It was the grudge of his cousin Fahmood Hassan @ Sehjad, who was a secret informer of police, which led to the registration of present false case against him.
13. In his defence, he examined himself as defence witness only, after getting permission of the Court U/s. 315 Cr.P.C. He narrated the aforesaid version taken by him, at the time of recording of his statement U/s. 313 Cr.P.C, in his defence.
14.Subsequently, matter was fixed for judgment after final arguments were heard.
15.I am dealing with allegations regarding commission of offence U/s. 12 of Passport Act firstly.
16. As per section 12 of Passports Act 1967, whoever knowingly furnishes any false information or suppresses any material information with a view to obtain a passport, commits an offence. For prosecuting any person with regard to commission of an offence under this Act, necessary sanction under section 15 of this Act from Central Government or Authorized Officer is mandatory. Accused during trial already admitted the said sanction dated 27.11.2003 Ex.A4 U/s. U/s. 294 Cr.P.C. r/w section 313 (1) (a) of Cr.P.C and Sec. 281 Cr.P.C.
17.Therefore the fact in issue so far as aforesaid offence was concerned, FIR No.07/99 P. S. R.K. Puram Page No. 5 of 22 revolved around the question, as to whether accused gave false information to the issuing authority, for obtaining passports, recovered from his possession? For getting answer to the said question, I had to appreciate the passports on record.
18.On 03.01.1999 accused was found in possession of two passports Ex.P1 and Ex.P2(collectively), by PW1 HC Hans Kumar and PW2 retired SI Nobat Singh on the basis of secret information, along with cash of Rs. 2,45,000/ and 8 drafts. The said passports were seized vide seizure memo Ex.PW1/C. The said passports bear the photographs of accused, signed by him. Both the said witnesses had deposed in tandem regarding recovery of the passports. Presence of these officials at the spot, was not doubtful, as no suggestions was given to them with regard to their absence at the spot. On the contrary, it was the case of accused himself that he was apprehended when he entered from Gaziabad to Delhi on the day of incident, on the basis of a complaint. If that be so, then it proved the fact that accused was apprehended by the police officials and in the given factual matrix, it was the possession of fake passports, which the basis of his arrest. All the suggestions pertaining to false implication of accused, were refuted by the aforesaid witnesses. Therefore, in view of aforesaid appreciation of their evidence, I believed their testimonies.
19. Passport Ex.P1 bearing no. 053478 was issued on 25.05.1992, in the name of Naseem Khan, S/o Abdul Hassan from Bhopal. Passport Ex.P2 bearing no. 3298545 was issued in the name of Naseem Alam, S/o Abdul Hassan on 29.05.1991 from New Delhi. There was another copy of Passport Ex.P2 bearing no. M226003 issued in the name of Naseem Alam, S/o Abdul Hassan from Muradabad on 17.11.1992.
FIR No.07/99 P. S. R.K. Puram Page No. 6 of 22Passport Ex.P1 bearing no. 053478 and Passport Ex.P2 bearing no. M226003 were having photographs of accused, signed by him. On 05.01.1999 from the residence of accused, at the instance of accused, passports bearing no. P481299 Ex.P4, passport bearing no. B012284 Ex.P5 and another passport bearing no. Q606003 Ex.P6, were recovered.
20.All the aforesaid passports, carried signed photographs of accused. Signatures of the accused, on these photographs, tallied with his specimen handwriting as per FSL report Ex.A2. Therefore the necessary corollary, which surfaced, was that accused had not only signed those photographs rather had given the information, mentioned in those passports. If that be so, then it was evident that in passport Ex.P1, accused gave his name as Naseem Khan whereas in Passport Ex.P2 he gave his name as Naseem Alam, which were different names. Apart from that passport Ex.P1 was issued on 25.05.1992, which as per record expired on 24.05.2002, whereas passport Ex.P2 was issued on 29.05.1991 and had to expire on 28.05.1996. Copy of Ex.P2, viz. Passport bearing no. M226003 was issued on 17.11.1992 and it was valid up to 16.11.2002. Therefore amongst those passports, it was passport Ex.P2 which was issued at the earliest date. Both the said passports were issued from different passport offices and mentioned different dates of birth of accused, which meant that accused had furnished false birth certificates/age proofs to the issuing authority, along with his application, for issuance of the aforesaid fake passports. As per rule 13 of Passports Rules 1960, A person holding a passport or travel document shall not be entitled to another passport or travel document unless he surrenders to the passport authority the passport or travel document already held by him, provided that separate passports or travel FIR No.07/99 P. S. R.K. Puram Page No. 7 of 22 document may be issued to the same person in respect of different countries if it is necessary so to do for facilitating his visits to such countries. Accused in this case did not surrender his initial passport. Accused did not explain the reason for issuance of subsequent passports as per the proviso of aforesaid rule.
21.Further on 05.01.1999, accused was found in possession of 3 passports Ex.P4, Ex.P5, Ex.P6(collectively), as per the testimonies of PW3 SI Sameer Shirvastava and PW4 Inspector Raj Kumar which were seized by seizure memo Ex.PW4/B. PW3 SI Sameer Shrivastava, identified the passports Ex.P4 to Ex.P6 in his testimony. He was not challenged on the point of identification of the passports. He refuted the suggestion of falsely implicating accused. PW4 Inspector Raj Kumar had deposed after expiry of more than 13 years, from the date of investigation, conducted by him. In such circumstances, I did not find his lack of knowledge regarding identity of persons, whom he had met at the spot, regarding identity of vehicle in which he visited the house of accused at Muradabad and regarding the time when he reached at the house of accused, to be material lacuna. It was natural for a human being to forget those minor details in a case, after lapse of so many years. Therefore, in view of aforesaid their evidence, I believed their testimonies with regard to the recovery of the said passports.
22.The net result was that all the aforesaid passports were not of different classes, viz. Ordinary passport/official passport/diplomatic passport as per the mandate of section 4 of Passports Act 1967. As per the Passport Act 1967, a passport can be issued in favour of a person afresh or it can be renewed. There is not provision which allows retention of more than one passport by a person, based on FIR No.07/99 P. S. R.K. Puram Page No. 8 of 22 different information relating to his/her identity, at the same time. Accused in this case had given false information pertaining to his name, date of birth and place of birth to the issuing authority of passport and therefore committed offence punishable U/s. 12(1)(b) of Passport Act 1967.
23.The subsequent offences were not based on direct evidence. They were based on circumstantial evidence. How circumstantial evidence has to be appreciated was observed by Hon'ble Apex Court in case law Sharad Birdhichand Sarda Vs. State of Maharashtra 1984 CriLJ1738 where it was held that Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this court, before conviction could be based on circumstantial evidence, must be fully established. They are"
(1) The circumstantial from which the conclusion of guilt is to be drawn should be fully established. The circumstantial concerned must or should and not nay be established;
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypotheses except that the accused is guilty;
(3) The circumstances should be of a conclusive nature and tendency;
(4) They should exclude every possible hypotheses except the one to be proved; and FIR No.07/99 P. S. R.K. Puram Page No. 9 of 22 (5) There must be a chain of evidence so compete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
24.Keeping in mind, aforesaid guidelines, I am appreciating evidence on record.
25. The next offence, with which accused was charged was the offence of cheating, punishable U/s. 420 IPC and defined U/s. 415 IPC. As per the definition of the said offence, whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induced the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission caused or is likely to cause damage or harm to that person in body, reputation or property, is said to "cheat".
26.In this case, accused was found in possession of two passports Ex.P1 and Ex.P2. In the said passports, place of birth of accused were different i.e. Jabalpur in Ex.P1 and Muradabad in Ex.P2. The said passports were obtained by accused from different branches of issuing authority. The information mentioned in the said passports, was based on information, furnished by the accused to the issuing authority. As per rule 13 of passport Rules 1980, accused was entitled to one passport only and was not entitled to another passport, unless he surrendered first passport issued to him. As per the proviso of the said rule, separate passports can be issued in favour of the same person, if it is necessary so to do for facilitating his visits to such different countries. Therefore when accused applied for issuance of FIR No.07/99 P. S. R.K. Puram Page No. 10 of 22 subsequent passport, the presumption was that he did not possess any passport in his favour, prior thereto. Passport Ex.P1 was issued on 25.05.1992 and passport Ex.P2 was issued on 29.05.1991. As per law, accused should have surrendered passport Ex.P2 before issuance of passport Ex.P1. By not mentioning the fact that he had one passport issued in his favour, prior to issuance of passport Ex.P1, accused conceal a material fact. The said concealment of fact was not only a material concealment rather it was dishonest concealment of fact, in the given situation of this case. Reason being that accused did not explain in his defence as to why he obtained both the said passports from different branches of issuing authority. Accused was carrying cash of Rs. 2,50,000/ along with 8 drafts, when aforesaid passports were recovered from him. It is significant to note here that all the police officials concerned, as mentioned above, who had recovered the passports in question, identify the passports viz. Ex.P1, Ex.P2, Ex.P4, Ex.P5 and Ex.P6 in their testimonies. Accused did not explain the reason, as to why he was carrying such a large amount of cash/demand drafts with him, in his defence. He in his defence evidence had stated that he was carrying "some cash" with him on the day of incident in question. He did not specify the exact cash carried by him on that day. He explained that he was carrying the said cash for purchasing raw material i.e. brass scrap for the purpose of making slab. The said explanation was vague, as accused did not mention the place from where he had to purchase the said scrap. Accused did not explain the source of getting said cash. It was not his case that he had necessary bank account from where he had obtained the said cash amount. The net result was that seizure of aforesaid dubious passports accompanied with the cash amount, which remained unexplained, indicated that the passports were not FIR No.07/99 P. S. R.K. Puram Page No. 11 of 22 obtained by accused, after furnishing true and clear information to the issuing authority. Coupled with aforesaid facts, was the recovery of passports Ex.P4, Ex.P5 and Ex.P6, from the house of accused on 04.01.1999. All the said subsequent recovered passports were also doubtful, as they were obtained by accused, before their expiry. There was no explanation, given by accused, as to why he had retained so many passports, issued in his favour, without surrendering them as per the law. Therefore, I found that there was dishonest concealment of fact by the accused, which is a deception, as per the explanation of definition, of the offence of cheating.
27.As per the object of Passports Act 1967, the said Act was made to provide for the issuance of passports and travel documents, to regulate the departure from India of citizens of India and other persons and for matters incidental or ancillary thereto. Therefore issuance of passport is a serious matter, regularized by aforesaid Act, so that Government of India, can have a check on the persons, moving out of India. Passport is a valuable property and by dishonestly concealing true facts, regarding identity of accused and with regard to the fact that accused was having more than one passport without any justification, as mentioned by me in my preceding paragraphs, accused had induced the issuing authority to issue passports, for which accused was not entitled. Issuance of passports, Ex.P1 to Ex.P6, in the given circumstances not only resulted in failure of the object of the Passport Act rather it also resulted in delivery of passports by the issuing authority under deception, which it would not have issued had it not been deceived by accused. Further the said act of accused resulted in harm to the reputation of the issuing authority, for the reason that the malafide act of accused, diluted the vigour of the law pertaining to issuance of FIR No.07/99 P. S. R.K. Puram Page No. 12 of 22 passport in India. By virtue of aforesaid act, accused created an example that one can obtain one or more passports, by duping issuing authority, any time in India. Therefore accused by his deceitful act, committed the offence of cheating the issuing authority.
28.Accused was also charged with the offence of forgery for the purpose of cheating, punishable U/s. 468 IPC. Offence of forgery is defined in section 463 IPC, which states that whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.
29.Accused in this case obtained passports Ex.P1 to Ex.P6 from issuing authority. The said passports were obtained by accused, only when he had filled the necessary form as per Passport Rules 1980. In the said application form, accused had to state true and correct facts, so that they could be verified and after verification, a proper passport could be issued to him. I observed that in each of the aforesaid passports, date of birth of accused was different. The necessary corollary of the said fact was that accused had furnished his different dates of birth to the issuing authority, falsely. In the given situation, motive of the accused was to obtained different passports from issuing authority. Accused therefore made false application form for issuance of aforesaid passports. Based on those passports, accused had claimed his right to visit abroad, on various occasions, as per the stamps affixed on those passports. Therefore he was able to dupe not only the issuing authority but also Government of India and he FIR No.07/99 P. S. R.K. Puram Page No. 13 of 22 committed forgery for the purpose of cheating, punishable U/s. 468 IPC.
30.The last offence with which accused was charged was section 471 IPC, which talks about punishment to be awarded to a person who fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document. In this case, accused was instrumental in obtaining passports Ex.P1 to Ex.P6, based on false information pertaining to his date of birth. In passport Ex.P1, accused claimed himself to be Naseem Khan born in Jabalpur on 06.08.1955, while in Ex.P2, he claimed himself to be Naseem Alam born in Muradabad on 21.02.1959. In Ex.P4, accused claimed himself to be Mohd. Naseem born in Muradabad on 10.04.1959, in Ex.P5 he claimed himself to Mohd. Naseem born in Muradabad on 21.01.1959, in Ex.P6 he claimed himself to be Aslam Alam born in Muradabad on 01.11.1959 and in Ex.A5 accused claimed himself to be Naseem Alam born in Muradabad on 21.02.1959. Therefore one can very well make out that the dates of birth, based information by the accused were not uniform as told by accused to the issuing authority. If that be so then the aforesaid passports, based on false information by the accused, were also false and by visiting various countries as per the stamps affixed on those passports, accused used those false passports to be genuine, knowingly. He therefore committed offence punishable U/s. 471 IPC.
31.Prosecution was thus able to discharged its initial onus of proving its case beyond reasonable doubt.
32.Per contra, accused examined himself as defence witness. As per his version, on the date of incident, when he was coming from Muradabad to Delhi, with some cash, for purchasing raw material, he was apprehended by a person in civil dress and subsequently FIR No.07/99 P. S. R.K. Puram Page No. 14 of 22 taken to PS R.K.Puram. At the PS, he was told that his wife had complained against him and when he was shown the written complaint, made by his wife, he found it to be a forged complaint. As per him, present case was planted on him at the behest of one Famud Hasssan @ Shehzad who is son of his uncle. That he was made to sign some blank papers forcefully and subsequently he was taken to his residence but nothing incriminating was recovered from his house. Subsequently, police officials went to the house of Famud Hassan while accused kept on sitting in the jeep for two hours. Statement of wife of accused was recorded in which it was stated that present case was falsely planted on accused. Finally accused was shifted to Tihar Jail.
33.Aforesaid version of accused was not believable, after I considered it. At the very outset accused did not specify the place from where he had to purchase the brass scrap, alleged by him. He did not specify the approximate time when he was apprehended by the person in civil dress. Accused did not place on record, the false complaint, allegedly filed by his wife against him. He did not specify as to what were the allegations, made by his wife in the said false complaint. Apart from that accused did not prove the identity of Famud Hassan @ Shahzad. What was the name of father of Famud Hassan @ Shahzad? What was the place of residence of Famud Hassan @ Shahzad? What was the enmity between accused and Famud Hassan @ Shahzad? How was Famud Hassan @ Shahzad so influential on the police? What happened to the statement of wife of accused pertaining to his innocence? Why accused did not make complaint against the police officials who harassed him and falsely implicated in this case? Aforesaid unanswered questions and vague version, did not help the cause of accused.
FIR No.07/99 P. S. R.K. Puram Page No. 15 of 2234.Apart from that accused stated that passport Ex.P7 used to be misused by Famud Hassan. How it was misused, was not explained by him. Accused explained that due to the criminal nature of Famud Hassan, he never complained to the police about the misuse of his photograph by Famud Hassan. Accused may justify himself on taking such stand, but as per law, as a reasonable prudent person, he should have made complaint to the police, for the reason that the consequences of the malafide act of Famud Hassan, were directly harming the interest of witness. By keeping mum, accused only caused more troubled for himself. Even otherwise, accused did not prove the fact as to how Famud Hassan was of criminal nature. He did not adduce any criminal record of Famud Hassan in his defence. Therefore his aforesaid plea was devoid of merit.
35.Accused was also not sure about the concerned agency to whom he had made complaint regarding being falsely implicated in this case by a police official, which only indicated that he was not coming up with true story and was evasive in his stand.
36.The net result was that stand of accused in his defence was not believable. I discarded it.
37.Accused raised certain issues during the course of final arguments, which I will be dealing in my subsequent paragraphs.
38.Firstly, it was argued by accused that there were no specific allegations pertaining to commission of offences in question, against accused and therefore in the absence of the same, accused cannot be convicted for any offence. The said argument was devoid of merit for the reason that accused was allegedly found in possession of two fake passports on 03.01.1999 by PW1 HC Hans Kumar and PW2 SI Nobat Singh. Apart from that, during investigation, accused was found possessing three more passports viz. Ex.P4 to Ex.P6 as per FIR No.07/99 P. S. R.K. Puram Page No. 16 of 22 seizure memo Ex.PW4/B, on 05.01.1999. Accused was the sole beneficiary of the said passports and therefore in the absence of any other mitigating factor, it can easily deduced that he was the maker of those passports. The said passports, I have already concluded, were false and therefore allegations regarding the offences in question, were specific and clear.
39.Secondly, it was argued that the said passports were not used and therefore it can not be said that accused had cheated any authority by using them. Again it was a baseless argument, as the stamps affixed on the said passports in question indicated that accused had left India for various countries on many occasions, by using the said passports. He therefore had cheated the issuing authority and the Government of India.
40.Thirdly, it was argued that even if case of prosecution was believe then also, it cannot be said that accused had committed any offence, as he had only retained the said passports and mere retention of said passports did not attract any penal liability. The said argument was not a cogent one. Reason being it was not a piece of paper in which accused had signed his own name which was recovered from him. Case property in this case were various passports, which were issued in favour of accused in different names, with different dates of birth. The said passports are very significant documents for traveling abroad. For obtaining the said documents, law makers have made a specific law under the Passport Act 1967, accompanied with Passport Rules 1980. One should follow the law, mentioned in the said Act. One is authorized to have one passport at one time unless there are exceptional circumstances, present, in tune with the relevant section/rule of the aforesaid law. By possessing many passports, in a very short interval of time, onus of proving that they were retained FIR No.07/99 P. S. R.K. Puram Page No. 17 of 22 by accused legally, shifted on accused. But accused did not answer or explain as to why he had retained so many passports with him. This situation, can be equated with the situation of retaining arms under the Arms Act. As per the said Act, a person can retain arms, after obtaining necessary license from concerned authority. If a person retains many arms based on different information of his identity, furnished to licensing authority, then it indicated that the modus operandi in obtaining the said arms was not truthful. In both case, the person who had obtained the passports or the arms, as the case may be, did not follow the procedure and keeping in mind the aim of the concerned Act, it can very well be observed that the intention of the seeker, was not bonafide. Aforesaid observation can be rebutted by the seeker only. Therefore retention of many passports by the accused coupled with other incriminating evidence, as mentioned in preceding paragraphs, created circumstantial evidence, to the effect that it was accused who had committed the offence in question.
41.Fourthly, it was argued that FSL report Ex.A2 was not a conclusive proof and was a rebuttable piece of evidence, which cannot be considered against accused in this case. I differed from the said argument. Reason being, accused had admitted the said report u/s. 294 Cr.P.C r/w section 313(1)(a)Cr.P.C and section 281 Cr.P.C, making the said report as conclusive piece of evidence. The out come of the said report, when seen in the given perspective of the case, was that it was accused who had signed his photographs, affixed on the passports in question, when compared to his admitted signatures and hand writings. This corroborated the prosecution story, to the effect that accused had forged the passports in question.
42.Fifthly, it was argued that PW2 SI Nobat Singh was not a reliable FIR No.07/99 P. S. R.K. Puram Page No. 18 of 22 witness, for the reason that he had not sealed the case property, that he had noted down the secret information, that he had not done any investigation pertaining to genuineness or fakeness of the passports in question and that he had not recorded the disclosure statement of accused. All the said issues were baseless, as the case property in this case were passports, which as per law, cannot be possessed by a person, in more than one quantity, under normal circumstances. Accused on his part did not explain the reason of retaining so many passports without expiry of the previous passports. Therefore their genuineness or fakeness was not an issue rather their mere retention, indicated foul play on the part of accused. So far as recording of disclosure statement or secret information was concerned, it was not a material lacuna in the prosecution story, even if it was seen as a lacuna. Recording of disclosure statement or secret information, is done to facilitate investigation and in the absence of their genuineness or their presence, whole investigation, cannot be thrown over board.
43.Seventhly, it was argued that PW1 Hans Kumar was not a reliable witness as he did not mention the time when he received the secret information, in his testimony. Again the said non mentioning the time did not cast any doubt on the prosecution story as it was not a material lacuna.
44.Eighthly, it was argued that PW3 Sameer Shrivastava and PW4 Raj Kumar were not reliable witnesses as they did not investigate the matter properly. Further PW4 Inspector Raj Kumar had not deposed about the identity of vehicle in which he had raided the house of accused, he had not mentioned the exact searching time in the house of accused and was not sure about the time when he recovered the passports Ex.P4 to Ex.P6 from the house of accused.
FIR No.07/99 P. S. R.K. Puram Page No. 19 of 22All the aforesaid arguments were not material, as accused did not explain the source and manner in which he had obtained the passports in question bearing his own photographs and signatures.
45.Ninthly, it was argued that PW5 Inspector R.S. Gotewal had not stated in his testimony that he had allowed accused to depart from IGI Airport on 17.08.1997 and therefore he was not reliable. The said argument was bereft of any reasoning, as his evidence was recorded after an expiry of more than 15 years from the day when he had allowed accused to depart from IGI Airport, so it was not expected of him to remember the face of accused. Even otherwise, accused had not cross examined this witness so his aforesaid argument was an afterthought and was discarded by me.
46.Lastly it was argued that due to absence of independent public witnesses, investigation in this case was not done properly and police officials cannot be believed in this case. The said argument was baseless as there is no rule of law that police officials are doubtful witnesses. On the contrary as per section 114 illustration (e) of the Evidence Act, there is rebuttable presumption in favour of police officials to the effect that they had regularly performed their duties. The said presumption could have been rebutted by accused, which he did not do convincingly in this case. I believed the testimonies of police witnesses.
47.Accused relied upon case laws viz. Md. Fasiuddin & Ors. Vs. State of Bihar & Anr. Decided by Hon'ble Jharkhand High Court on 07.05.2012 in Criminal Miscellaneous numbers 7391 of 2000(R)/7392 of 2000(R)/7394 of 2000(R)/8978 of 2000(R), Ritu Khurana And Another Vs. Brij Lal Chopra decided by Hon'bel PunjabHaryana High Court on 17.01.2012 in Criminal Miscellaneous no. 8227 of 2010 and Geeta Mehrotra & Anr. Vs. State of U.P. & Anr, decided on FIR No.07/99 P. S. R.K. Puram Page No. 20 of 22 17.10.2012 by Hon'ble Supreme Court of India. The said case laws are not applicable to the given facts and circumstance of this case and therefore discarded by me.
48.Before concluding, I categorically give my finding to the effect that the circumstantial evidence placed on record conclusively proved that accused was found in possession of passports in question, that accused had not obtained those passports by following proper procedure, that accused had concealed truthful information from issuing authority, that accused by concealing the said truthful information regarding his identity befooled the issuing authority as well as the Government of India, that he had used the said fake passports for visiting countries in contravention of the basic object of the Passports Act. Therefore he had cheated the Government agency on the basis of false information.
49. Keeping in mind the aforesaid appreciation of evidence, accused Nasim Alam is convicted U/s. 420/468/471/ IPC r/w section 12 of Passport Act.
Announced in open court ( PRASHANT SHARMA )
today i.e. 23.07.2013 MM07/PHC/ New Delhi.
23.07.2013
FIR No.07/99
P. S. R.K. Puram Page No. 21 of 22
State Vs. Naseem Alam
FIR No. 07/99
P. S. R.K. Puram
U/s 420/468/471/ IPC r/w section 12 of Passport Act.
23.07.2013
Present: Accused in person with counsel.
Vide my judgment of even date accused Naseem Alam is
convicted U/s. 420/468/471/ IPC r/w section 12 of Passport Act..
Put up for arguments on sentence on 12.08.2013.
( PRASHANT SHARMA ) M.M.07,PHC, New Delhi.
23.07.2013.
FIR No.07/99 P. S. R.K. Puram Page No. 22 of 22