Delhi District Court
State vs . Mohd. Kaiyum & Anr. on 12 May, 2023
IN THE COURT OF SH. SANJAY KHANAGWAL
ASJ-02: NEW DELHI DISTRICT:
PATIALA HOUSE COURTS, DELHI
Date of Judgment: 12.05.2023
FIR No. 02/2014
PS: Special Cell
U/s: 489B/489C/120B IPC
Unique case ID NO.: DLND01-000694-2014
Case No. 8942/2016
COMPLAINANT State
REPRESENTED BY State
ACCUSED
1. Mohd. Kaiyum @
Kaiyum
S/o Sh. Sajid Ali
R/o Vill Anoop Nagar,
PO Jadupur, PS
Kaliachak, Distt. Malda,
West Bengal.
2. Mohd. Habibuddin
Momin @ Momin
S/o Sh. Samaun Momin
R/o Village Bhagalpur,
PS Kaliachak, Distt.
Malda, West Bengal
3. Kamal @ Sonu
S/o Late Sh. Hosla
Prasad
R/o House No.A-131,
Kabir Basti, Malka Ganj
4. Lokesh Kumar @
Lokesh
son of Sh. Bhagwat
Prasad
R/o 351, Gali No.17,
Mukesh Colony,
State vs. Mohd. Kaiyum & Anr.
FIR No. 02/2014
PS: Special Cell Page no. 1 of 49
Ballabhgarh, Faridabad,
Haryana
(discharged vide order
dated 24.09.2015)
5. Nishant Madan @
Manu son of Late Sh.
Vinod Kumar Madan
R/o 4085-86, Gali
Meena Bagh, Subzi
Mandi, Roshnara Road,
Delhi.
(discharged vide order
dated 24.09.2015)
REPRESENTED BY Sh. Anil Tomar Ld.
Counsel for accused
Kamal @ Sonu
Sh. Bishnu Kumar
Ld. Counsel for
accused Mohd.
Kayum and
Habibuddin
Date of Offence -
Date of FIR 12.01.2014
Date of Charge-sheet 06.08.2014
Date of Framing of Charges 04.11.2015
Date of commencement of evidence 03.02.2016
Date on which judgment is reserved 28.03.2023
Date of the Judgment 12.05.2023
Final Order Convicted
State vs. Mohd. Kaiyum & Anr.
FIR No. 02/2014
PS: Special Cell Page no. 2 of 49
DETAILS OF ACCUSED :-
Rank of Name of Date of Arrest Date of Offences Whether Sentence Period of
Accused Accused Release charged Acquitted imposed Detention
on Bail with or convicted Undergon
e during
Trial for
purpose of
section
428,
Cr.P.C.
Private Mohd. 26.11.15 120B/489 convicted -- --
job Kaiyum 12.01.2014 B/489C
@ readwith
Kaiyum section
15.01.16 120B IPC
-do- Mohd. 12.01.2014
Habibu 120B/489
ddin B/489C
Momin readwith
@ section
Momin 120B IPC
-do- Kamal
@ Sonu 12.01.2014 --
LIST OF PROSECUTION / DEFENCE / COURT WITNESSES
A. PROSECUTION
RANK NAME NATURE OF
EVIDENCE
(EYE WITNESS,
POLICE WITNESS,
EXPERT WITNESS,
MEDICAL WITNESS,
PANCH WITNESS.
State vs. Mohd. Kaiyum & Anr.
FIR No. 02/2014
PS: Special Cell Page no. 3 of 49
OTHER WITNESS)
SI Vikas With regard to preparation
Mudgal of sketch by the IO.
2. Alternate Nodal Yogesh With regard to mobile
Officer Tripathi phone details.
3. Constable Abdul Regarding interception of
Ahad mobile calls between the
accused
4.Nodal Officer Sh. Vinod With regard to mobile
Kumar phone details.
5. SI SI Witness to raid. (PW5)
Maninder
Singh
Constable Sanchit With regard to deposit of
Dabas pullandas to CFSL
HC Anil Rao Witness to raid. (PW7)
HC Sushil Deposit of case property
Kumar with FSL (PW8)
ASI Devappa Duty officer (PW9)
regarding registration of
FIR
Sr. Scientific V.T. With regard to taking of
assistant, CFSL Abrahim voice sample of accused
(PW10)
Laboratory Ms. With regard to taking
Assistant, CFSL, Anuradha voice sample of accused
Delhi Dey (PW11)
ASI Satender With regard to proving of
Singh interception order (PW12)
Constable Jitender Regarding deposit of
Kumar voice sample pullandas to
CFSL (PW13)
Nodal Offficer Aditya Regarding mobile phones
State vs. Mohd. Kaiyum & Anr.
FIR No. 02/2014
PS: Special Cell Page no. 4 of 49
Kumar (PW14)
Alternate Nodal Israr Babu Regarding mobile phone
Officer details of the accused
(PW15)
Head Constable Sanjay Regarding recording of
disclosure statement of
the accused by the IO .
(PW 16)
Assistant Director V.R. Regarding examination of
Anand the cartridges (PW17)
Car Driver Ganga Owner of the scooty
Ram (PW18)
HC Sanjay Pal Witness of raiding party
Singh (PW19)
Head Constable Sushil Regarding deposit of
Kumar sealed pullandas to FSL
(PW19)
Inspector Dharmend IO. (PW20)
er Kumar
Sr. Scientific Officer Amitosh Witness related to
Physics CFSL Kumar scientific evidence
(PW20)
Formal witness Manish He had provided copy of
Kumar ID proof to IO. (PW 21)
Formal witness Munna Deposition regarding
Yadav mobile phone
No.8447408283 (PW22)
Assistant Sub Sanjiv MHCM (PW23)
Inspector Kumar
SSO-I CFSL Subrat Regarding examination of
Kumar pullandas of voice
Choudhur recordings (PW24)
y
Inspector Rakesh Witness to raid and
State vs. Mohd. Kaiyum & Anr.
FIR No. 02/2014
PS: Special Cell Page no. 5 of 49
Malik recovery. (PW25)
B. DEFENCE WITNESS, IF ANY :- NA
RANK NAME NATURE OF EVIDENCE
(EYE WITNESS, POLICE
WITNESS, EXPERT
WITNESS, MEDICAL
WITNESS, PANCH WITNESS.
OTHER WITNESS)
ASI Pirthi Singh Regarding lodging of DD
No.17A at PS Sabzi Mandi by
C. COURT WITNESSES, IF ANY :- NA
RANK NAME NATURE OF EVIDENCE
(EYE WITNESS, POLICE
WITNESS, EXPERT
WITNESS, MEDICAL
WITNESS, PANCH WITNESS.
OTHER WITNESS)
NIL
LIST OF PROSECUTION / DEFENCE / COURT EXHIBITS
A. PROSECUTION :-
Sr. No. Exhibit Number Description
1 Ex. PW1/A Sketch of seven live
cartridges
State vs. Mohd. Kaiyum & Anr.
FIR No. 02/2014
PS: Special Cell Page no. 6 of 49
2. Ex. PW1/B Seizure memo of
cloth pullanda
3. Ex. PW2/A CAF of mobile
NO.9350486350
4. Ex. PW2/B CDR of mobile
NO.9350486350
5. Ex. PW2/C Certificate u/s 65B of
IEA.
6. Ex. PW3/A Transcriptions
7. Ex. PW3/B 24 transcripts
8. Ex. PW3/C Handing over memo
of transcripts
9. Ex. PW 3/D Seizure memo of
intercepted calls
10. Ex. PW3/E Certificate u/s 65B
IEA in support of two
DVDs.
11. Ex. PW4/A CAF of mobile
No.9968394330
12. Ex. PW4/B CDR of mobile
No.9968394330
13. Ex. PW4/C Cell ID chart of
mobile
No.9968394330
14. Ex. PW4/D Certificate u/s 65B of
IEA
15. Ex. PW5/A Disclosure statement
of accused Kamal @
Sonu
16. Ex. PW5/B Supplementary
disclosure statement
of Kamal @ Sonu
17. Ex. PW5/C Arrest memo of
State vs. Mohd. Kaiyum & Anr.
FIR No. 02/2014
PS: Special Cell Page no. 7 of 49
accused Nishant
Madan
18. Ex. PW5/D Personal search
memo of accused
Nishant Madan
19. Ex. PW5/E Body inspection
memo
20. Ex. PW 5/F Disclosure statement
of accused Nishant
Madan .
21. Ex. PW5/G Seizure memo
22. Ex. PW5/P1 Case property
23. Ex. PW 5/P2 Case property
24. Ex. PW 5/DA Site plan
25. Ex. PW 5/DB Disclosure statement
of accused Mohd.
Kaiyum
26. Ex. PW5/DC Disclosure statement
of accused
Habibuddin Momin
27. Ex. PW 7/A Seizure memo of Bag
recovered from
accused Habibuddin
28. Ex. PW 7/B1 to B3 List of FICN
29. Ex. PW 7/C Seizure memo
30. Ex. PW 7/D1 to D4 List of FICN
recovered from
accused Kamal @
Sonu
31 Ex. PW8/A RC
32. Ex. PW9/A Copy of FIR
33. Ex. PW9/B Endorsement on
rukka
State vs. Mohd. Kaiyum & Anr.
FIR No. 02/2014
PS: Special Cell Page no. 8 of 49
34. Ex. PW10/A Micro SD card
containing voice
samples of accused
Mohd. Kaiyum,
Kamal @ Sonu and
Nishant
35. Ex. PW 10/B Voice sample of
accused Lokesh
Kumar
36. Ex. PW 12/A Interception order
37. Ex. PW14/A CAF of mobile
No.8527206176
38. Ex. PW 14/B CDR of mobile no.
7827720680
39. Ex. PW 14/C Cell ID Chart of
mobile
No.8527206176
40. Ex. PW 14/D Certificate u/s 65B
Evidence Act.
41. Ex. PW 14/E to 14/G CAF, CDR and
certificate u/s 65B IE
Act
42. Ex. PW 15/A CAF regarding phone
No.8447405338
43. Ex PW 15/B CDR regarding phone
No.8447405338
44. Ex. PW 15/C Certificate u/s 65B
Evidence Act.
45. Ex. PW 15/D CAF regarding phone
No.9953595503
46. Ex. PW15/E CDR regarding phone
No.9953595503
47. Ex. PW 15/F Certificate us/ 65B of
IE Act regarding
State vs. Mohd. Kaiyum & Anr.
FIR No. 02/2014
PS: Special Cell Page no. 9 of 49
mobile
No.9953595503
48. Ex. PW 15/G CAF regarding phone
No. 9993016380
49 Ex. PW 15/H CDR regarding phone
No. 9993016380
50. Ex. PW 15/I Certificate us/ 65B of
IE Act regarding
mobile No.
9993016380
51. Ex. PW 15/J CAF regarding phone
No. 8348419636
52. Ex. PW 15/K CDR regarding phone
No. 8348419636
53. Ex. PW 15/L Certificate u/s 65B
I.E. Act regarding
phone No.
8348419636
54. Ex. PW 15/M CAF regarding phone
No. 9775819037
55. Ex. PW 15/N CDR regarding phone
No. 9775819037
56. Ex. PW 15/O Certificate u/s 65B
I.E. Act regarding
phone No.
9775819037
57. Ex. PW15/P Cell ID chart
58. Ex. PW16/A Disclosure statement
of accused Mohd.
Kaiyum
59. Ex. PW16/B Disclosure statement
of accused
Habibuddin
60. Ex. PW 17/A FSL report regarding
State vs. Mohd. Kaiyum & Anr.
FIR No. 02/2014
PS: Special Cell Page no. 10 of 49
1
cartridges
61. Ex. PW 18/A RC of the scooty
62. Ex. PW 18/B Copy of election card
63. Ex. PW 19/A Seizure memo of
scooty
64. Ex. PW 19/B1 to B3 Arrest memos of
accused Kaiykum,
Habibuddin and
Kamal @ Sonu
65. Ex. PW 19/C1 to Personal search
Ex.PW19/C3 memos of accused
Kaiykum, Habibuddin
and Kamal @ Sonu
66. Ex. PW 19/D Seizure memo of
railway ticket of
Mohd. Kaiyum
67. Ex. PW 19/E Railway ticket
68. Ex. PW 19/E1 to E3 Seizure memo of
mobile phones
69. Ex. PW 19/F1 to F3 Disclosure statement
of accused, Mohd.
Kaiyum, Habibuddin
and Kamal
70. Ex. PW 19/4 to F6 Body inspection
memos memos of
accused, Mohd.
Kaiyum, Habibuddin
and Kamal
71. Ex. PW19G Supplementary
disclosure statement
of accused Kamal
72. Ex. PW19/H1 to H-3 Arrest memo of
accused Lokesh
Kumar, personal
State vs. Mohd. Kaiyum & Anr.
FIR No. 02/2014
PS: Special Cell Page no. 11 of 49
1
search memo and
disclosure statement
73. Ex. PW19/I Seizure memo of
accused Lokesh
74. Ex. PW 19/J Supplementary
disclosure statement
of accused Kamal
Sonu
75. Ex.PW19/P-9 Mobile phones
recovered from
accused persons
76. Ex. PW 20/A Rukka
77. Ex. PW 20/P1 Military colour
shoulder bag
78. Ex. PW 20/A and CFSL report
Ex.PW20/B
79. Ex. PW 21/A Copy of voter ID card
of accused Kamal @
Sony
80. Ex. PW23/A Photocopy of relevant
entry regarding
seizure memos of four
mobile phones, SIM
cards, one scooty and
the personal searches
of accused persons
Kamal, Kaiyum and
Habibuddin.
81. Ex. PW 23/B Entry in register
No.19 regarding
deposit of two mobile
phones alongwith Sim
card and personal
search articles of
accused Lokesh
State vs. Mohd. Kaiyum & Anr.
FIR No. 02/2014
PS: Special Cell Page no. 12 of 49
1
Kumar.
82. Ex. PW 23/C Entry in malkhana
register No.19
regarding deposit of
pullanda
83. Ex. PW23/D Entry regarding
deposit of two mobile
phones alongwith sim
card and the personal
search of accused
Nishant Madan
84. Ex. PW23/E Entry in register
NO.19 regarding
deposit of four sealed
parcels
85. Ex. PW23/F Entry regarding
deposit of two sealed
parcels.
86. Ex. PW23/G Entry regarding
deposit of one sealed
parcel in malkhana.
87. Ex. PW23/H Entry regarding
handing over two
sealed parcels for
deposit in FSL to
const. Sushil
88. Ex. PW23/I Entry regarding
handing over of
sealed pullanda to
Sanjit for deposit in
FSL Rohini.
89. Ex. 23/J Handing over of five
sealed parcels to
const. Jitender for
deposit in CFSL.
State vs. Mohd. Kaiyum & Anr.
FIR No. 02/2014
PS: Special Cell Page no. 13 of 49
1
90. Ex.PW23/K Handing over of two
sealed parcels to
const. Sanjay for
deposit in CFSL.
91. Ex. P24/A Voice examination
report
92. Ex.PW24/P1 Outer yellow
envelope
93. Ex.PW24/P2 Inner yellow colour
envelope
94. Ex.PW24/P3 Khaki colour
envelope
95. Ex.PW24/P4 DVD
96. Ex.PW24/P5 Yellow colour
envelope
97. Ex.PW24/P6 Micro SD card
98. Ex.PW24/P7 Yellow colour
envelope
99. Ex.PW24/P8 SD card
100. Ex.PW24/P9 Yellow colour
envelope
101. Ex.PW24/P10 Micro SD card
alongwith its
packings
102. Ex.PW24/P11 Yellow colour
envelope
103. Ex.PW24/P12 Micro SD card
alongwith its packing
104. Ex.PW25/A Site plan of the place
of recovery
105. Ex.PW25/B Railway ticket chart
alongwith verification
report of railway
State vs. Mohd. Kaiyum & Anr.
FIR No. 02/2014
PS: Special Cell Page no. 14 of 49
1
106. Ex.PW25/C Seizure memo of two
DVDs
107. Ex.PW25/D Transcript of
intercepted calls
108. Ex.PW25/P1 to P7 Cartridges
B. DEFENCE: NIL
Sr. No. Exhibit Number Description
1. Ex.DW1/A DD No.27
C. COURT EXHIBITS :- NIL
Sr. No. Exhibit Number Description
Nil Nil
Nil Nil
D. MATERIAL OBJECTS :- NIL
Sr. No. Material Description
Object
Number
1 Nil Nil
2 Nil Nil
JUDGMENT
1. Accused persons have been sent up to face trial in this Court for commission of offences punishable under sections State vs. Mohd. Kaiyum & Anr.
FIR No. 02/2014PS: Special Cell Page no. 15 of 49 1 489B/489C/120B IPC as to the trafficking/use/possession of Fake Indian currency notes (hereinafter referred to as "FICN").
2. The brief facts of the prosecution case are that the Special Cell/NDR was working on the syndicate involved in pumping and circulating fake Indian Currency Notes (FICN) printed in Pakistan and were being infiltrated in India through Indo Bangladesh border. An information in this regard was received. To further develop this information, a team under the supervision of ACP Special Cell/NDR and technical surveillance was mounded. In furtherance of working over this information, it was revealed that one Kaiyum used to collect the consignment of FICN from one Mallek and distribute it in Old Delhi area. In furtherance of this information on 12.01.2014 from deployed sources, it was revealed that accused Kaiyum after collecting the consignment of FICN from Mallek, was coming to Delhi alongwith one of his associates to deliver the FICN to one of his associates near Indira Market, Sabzi Mandi area at about 12.00 noon.
3. Accordingly, a raiding team under the supervision of Inspector Rahul Kumar Singh was formed which consisted of SI Mahabir Singh, SI Mahinder, ASI Udaibeer, ASI Raj Kumar, HC Ahmad, HC Kisna Ram, HC Manish Kumar, HC Sanjay Pal, HC Sanjay Sharma, HC Anil Rao, Const. Abdul Ahad Khan, const. Mohd. Danish Haider. The raiding team alongwith the secret informer reached at the spot and took position on strategical points. At State vs. Mohd. Kaiyum & Anr.
FIR No. 02/2014PS: Special Cell Page no. 16 of 49 1 about 12.00' clock in the noon, two persons came from the side of PS Sabzi Mandi, one was of short height and another of medium height. The person of medium height was carrying military colour bag hanging on his shoulder. They stopped at Indira Market and kept waiting there. The secret informer identified the person of short height as Kaiyum and other one as Habibuddin Momin. After about 10 minutes, one person riding a scooty make Honda Passion bearing registration No.DL-7S-BD- 8603, stopped there and started having conversation with accused Kaiyum and Habibuddin. Accused Habibuddin Momin took out a green and white colour polythene from his military colour bag pocket and handed over to accused Mohd. Kaiyum. Mohd. Kaiyum checked the polythene and handed over the same to the accused riding on the scooty whose name lateron came to be known as Kamal @ Sonu.
4. Accused Kamal @ Sonu checked the polythene and kept it under the seat of the scooty. The polythene bag recovered from the dickey of the scooter of Kamal @ Sonu, on checking was found containing four wads of FICN in the denomination of Rs.500/- each totalling Rs.2 lacs, each wads of 100 currency notes which were recovered. Accused Habibuddin Momin was also checked and from his possession, one transparent polythene having three wads of 100 currency notes each of Rs.1000/- denomination of a total value of around Rs.3 lacs of FICN were recovered. So recovered FICN from the accused persons were seized.
FIR No. 02/2014PS: Special Cell Page no. 17 of 49 1
5. During the course of further investigation, on 14.01.2014, house search of accused Kamal @ Sonu was conducted and during his house search, 7 live cartridges of .315 bore were recovered at the instance of Kamal @ Sonu. During the further investigation, voice sample of accused were obtained on the basis of intercepted conversation between the accused persons.
6. Inspector Dharmender prepared rukka and sent it to PS Special Cell for registration of the FIR. Therefore, charge-sheet was filed against the accused persons for commission of offence of possessing of FICN and also circulating the same in furtherance of criminal conspiracy.
7. Vide order dated 24.09.2015 and 04.11.2015, charges were framed against accused Mohd. Kaiyum, Mohd. Habibuddin Momin and Kamal @ Sonu u/s 120B and u/s 489B/489C readwith section 120B IPC to which they pleaded not guilty and claimed trial.
8. In order to prove its case, the prosecution has examined as many as twenty five (25) witnesses:-
PW-1 SI Vikas Mudgal. He has deposed that on 14.1.2014, he was posted at PS Subzi Mandi. On that day SI Rakesh Kumar IO came to PS at about 6.50 pm alongwith accused kamal @ sonu in his custody. At the request of IO, he joined the investigation. Accused Kamal @ Sonu led the police team to his residence at H. No.A-131, Kabir Basti, Malka Ganj, New Delhi. At his State vs. Mohd. Kaiyum & Anr.FIR No. 02/2014
PS: Special Cell Page no. 18 of 49 1 instance, seven live cartridges of .315 bore were recovered from his residence. Sketch of the seven live cartridges was prepared by the IO in his presence vide Ex.PW1/A. Same were seized vide seizure memo Ex.PW1/B. He identified the seven cartridges bearing A1 to A7 and A1 being test fired. PW-2 is Sh. Yogesh Tripathi, Alternate Nodal Officer. He deposed that he was working as the Alternate officer. He has produced the CAF for mobile No. 9350486350 in the name of Ghanshyam Dass. The same is Ex.PW2/A (OSR).
He has also produced the CDR of mobile No.9350486350 w.e.f. 01.12.2013 to 16.01.2014 as Ex.PW2/B (colly 17 pages).
The necessary certificate u/s 65B of I.E. Act in support of the CDR has been proved as Ex.PW2/C. PW-3 is Constable Abdul Ahad Khan. He has deposed that on 06.02.2014 , he was posted as constable in Special Cell. He heard the intercepted calls pertaining to mobile No.8348419636, 97755819037 and 8447405338 in the office of special cell on 06.02.214 at about 7 pm. After listening to the intercepted conversations which were in Bengali language, he prepared their transcripts. The number of transcripts prepared by him were 27.
Three of the transcripts were prepared by him in his own handwriting which are Ex.PW3/A (colly), five pages. The remaining 24 transcripts were type in the computer in special cell office under his dictation. The same are Ex.PW3/B (colly). He handed over the said transcripts to IO SI Rakesh Malik which were seized by him vide memo Ex.PW3/C bearing his State vs. Mohd. Kaiyum & Anr.
FIR No. 02/2014PS: Special Cell Page no. 19 of 49 1 signature at point A. He further deposed that he was able to translate the conversations which were in Bengali because he was borne and brought up in District Dumka which is bordering West Bengal and Jharkhand where he learnt to speak and understand Bengali language.
He further deposed that on 10.03.2014, he downloaded the intercepted calls of mobile No.8348419636, 97755819037 and 8447405338 from computer systems in the office of the special cell in which the interception was carried out. He downloaded the intercepted calls on two DVDs (Moserbear) which were handed over by him to the IO who put them in two separate brown coloured envelopes sealed with the seal of RKM and both the sealed pullandas were marked as DVD1 and DVD2. The same were seized by the IO vide seizure memo Ex.PW3/D. He also prepared the certificate u/s 65B of the Indian Evidence Act in support of the said two DVDs which is now Ex. PW3/E bearing his signature at point A. PW-4 is Sh. Vinod Kumar, Nodal Oficer. He deposed that he was working as Nodal Officer in MTNL. He produced the CAF for mobile No.9968394330 in the name of Parveen Kumar and the same is Ex.PW4/A. The CAF is accompanied with photocopy of the Bar counsel of Delhi identity card which is mark PW4/A. He has also proved the CDR of mobile No. 9968394330 w.e.f. 01.12.2013 to 12.01.2014 which is ex.PW4/B (colly 22 pages), he also proved the cell ID chart Ex.PW4/C (colly 2 State vs. Mohd. Kaiyum & Anr.
FIR No. 02/2014PS: Special Cell Page no. 20 of 49 2 pages). He also proved the certificate u/s 65 B of the Evidence Act as Ex.PW4/D. PW-5 is SI Maninder Singh. He has deposed that on 12.01.2014, he was present at the office of special Cell/NDR. At about 8 am a secret informer came to the office of special cell and informed Inspector Dharmender Kumar about the consignment of FICN which was to be supplied at Malka Ganj. The said information was reduced into writing in the roznamcha and a raiding party under the supervision of Insp. Rahul Kumar was constituted which comprised SI Mahavir Singh, ASI Udayvir, Inspector Dharmender Kumar, HC Manish Kumar, HC Sanjay Singh, Const. Abdul Ahad, Const. Danish and other staff members.
He further deposed that at about 12 noon, accused Mohd. Kaiyum and Habibuddin came from the side of PS Sabzi Mandi. They stopped at Indira Market and kept waiting there. After about 10 minutes, Kamal @ Sonu came on a scooty and stopped there and started having conversations with them. Habibuddin Momin, took out a green and white colour polythene from the military colour bag and handed over to Mohd. Kaiyum who checked the polythene and handed over the same to the accuesed on scooty whose name later on came to be known as Kamal. Kamal checked the polythene and kept in the dicky below the seat. He further deposed that at the signal given by Inspector Rahul the raiding team surrounded the accused persons and apprehended them.
FIR No. 02/2014PS: Special Cell Page no. 21 of 49 2 On counting the polythene contained four wads of 100 notes each of Rs.500/- denomination and same turned out to be the fake currency. On checking the military colour bag in possession of Haminuddin, it was found containing wearing apparel and a transparent polythene containing three wads of 100 notes each of Rs.1000/- denomination and same also turned out to be fake currency. Thereafter, the IO prepared rukka and handed over the same to HC Anil Rao and got the case registered. He further deposed that after registration of FIR further investigation was entrusted to SI Rakesh Malik who came at the spot. The IO handed over the seizure memo, the bundle of case property alongwith the accused persons and the scooty to the IO. The IO arrested the accused persons and also took into possession the scooty.
PW-6 is Const. Sanjit Dabas. He deposed that on 04.02.2014, he was posted as constable and on that day on the instructions of IO SI Rakesh Malik, he collected the pullanda duly sealed with the seal of RM from MHCM vide RC No.25/21/14 alongwith FSL form and deposited the same in FSL and gave the receipt to MHCM. He also deposed that so long as the case property remained with him, the same was not tampered with.
PW-7 is HC Anil Rao . He was posted at Special Cell and was the member of the raiding team. He corroborates the testimony State vs. Mohd. Kaiyum & Anr.
FIR No. 02/2014PS: Special Cell Page no. 22 of 49 2 of PW5 on receipt of information and visit of spot alongwith the members of raiding team. He further deposed about the apprehension of accused persons and recovery of case property from them . He also identified the case property recovered from the accused persons vide Ex.PW7/A, Ex.PW7/B1 to Ex.PW7/B3, Ex.PW7/C and Ex.PW7/D1 to Ex.PW7/D4. PW-8 is HC Sushil Kumar , who deposed that on 03.02.2014, as per the instructions of the IO, he collected two sealed parcels duly sealed with the seal of DK with FSL form containing FICN from MHCM and deposited the same with FSL Rohini vide RC NO.22/21/14 which is Ex.PW8/A and submitted the acknowledgment of FSL Rohini with MHCM.
.
PW-9 is ASI Devappa deposed that on 12.01.2014, he was working as duty officer in PS Special Cell and on the basis of rukka he recorded the FIR No.2/2014 of the present case and copy of the same was proved vide Ex.PW9/A (OSR). He made his endorsement on the rukka vide Ex.PW9/B and copy of FIR and rukka were sent o SI Rakesh Malik through const. Anil Rao.
PW-10 is Sh. V.T. Abrahim, Sr. Scientific Assistant, CFSL, Lodhi Road. He deposed that on 07.02.2014, he was working as Scientific Assistant in CFSL, Lodhi Road and on the instructions of his Heads of Division, he recorded the specimen voice sample of accused Mohd. Kaiyum, Kamal @ Sonu, Nishant and Lokesh Kumar in his office. The accused were brought by SI Rakesh State vs. Mohd. Kaiyum & Anr.
FIR No. 02/2014PS: Special Cell Page no. 23 of 49 2 Malik and voice samples were of all the above four accused were recorded in separate Micro SD card of make Sandisk which was handed over to IO. He identified the micro SD card containing voice samples of accused Mohd. Kaiyum, Kamal @ Sonu and Nishant vide seizure memo Ex.PW10/A and voice sample of Lokesh vide seizure memo Ex.PW10/B. PW-11 is Ms. Anuradha Dey, Laboratory Assistant, CFSL, CBI, Lodhi Road, New Delhi. She deposed that on 07.02.2014, she was working as Laboratory Assistant in CFSL, Lodhi Road and on the instructions of his Heads of Division, she recorded the specimen voice sample of accused Mohd. Kaiyum, Kamal @ Sonu, Nishant and Lokesh Kumar in her office. The accused were brought by SI Rakesh Malik and voice samples were of all the above four accused were recorded in separate Micro SD card of make Sandisk which was handed over to IO. She identified the micro SD card containing voice samples of accused Mohd. Kaiyum, Kamal @ Sonu and Nishant vide seizure memo Ex.PW10/A and voice sample of Lokesh vide seizure memo Ex.PW10/B both bears her signatures.
PW-12 is ASI Satender Singh. He has brought the original interception order bearing No.33982-84/X/M/13/1241/Spl. Cell, dated 12.12.2013. He further deposed that as per the record, the Union Home Secretary had authorized to intercept the four mobile numbers mentioned in the interception order for the State vs. Mohd. Kaiyum & Anr.
FIR No. 02/2014PS: Special Cell Page no. 24 of 49 2 period of 60 days w.e.f. 11.12.2013 u/s 5 (2) of the Indian Telegraph Act. Accordingly Sh. Sanjiv Kumar Yadav, DCP Special Cell conveyed the authorization to the Nodal Officer of the service provider (Vodafone) to intercept the mobile phone numbers as mentioned in the interception order Ex.PW12/A. (OSR).
PW-13 is Constable Jitender Kumar. He deposed that on 12.03.2014, he was posted as constable in special Cell, Lodhi Colony. On the said day, as per the instructions of IO, he collected the voice samples/exhibits i.e. four pullandas containing micro SD card marked VS1 to VS4 and one pullanda of DVD marked DVD1 from the MHCM vide RC No.20/21/14. The four pullandas were sealed with the seal of RM whereas the pullanda containing DVD was sealed with the seal of RKM. He took the same to CFSL, Lodhi Road and deposited the same there and handed over the receipt of the same to MHCM. He also deposed that so long as the case property remained with him, the same was not tampered with.
PW14. is Sh. Aditya Kumar, Circle Nodal Officer, Bharti Airtel Ltd. He has proved the Customer Application form alongwith ID proof and CDR of mobile number 8527206176 for the period from 01.12.2013 to 12.01.2014 alongwith certificate u/s 65B of Indian Evidence Act as Ex. PW 14/A, Ex. PW 14/B and Ex. PW 14/C and PW14/D. State vs. Mohd. Kaiyum & Anr.
FIR No. 02/2014PS: Special Cell Page no. 25 of 49 2 He also proved the CAF, CDR and certificate u/s 65B of Indian Evidence Act given to the IO by the then Nodal Officer Sh. Chander Shekhar vide Ex.PW14/E to Ex.PW14/G. PW15. is Sh. Israr Babu, Alternate Nodal Officer, Vodafone Mobile Services Ltd. He has proved the Customer Application form alongwith ID proof and CDR of mobile number 8527206176 which as per record, was issued to Munna Yadav, for the period from 01.12.2013 to 12.01.2014 alongwith certificate u/s 65B of Indian Evidence Act as Ex. PW 15/A, Ex. PW 15/B and Ex. PW 15/C respectively.
He also brought the CAF regarding mobile No.9953595503 alongwith ID proof and CDR of the said mobile number which as per record, was issued to Nishant, for the period from 01.12.2013 to 12.01.2014 alongwith certificate u/s 65B of Indian Evidence Act as Ex. PW 15/D, Ex. PW 15/E and Ex. PW 15/F respectively.
He has also proved the CAF regarding mobile No.9993016380 alongwith ID proof and CDR of the said mobile number which as per record, was issued to Mohd. Farooq Momin son of Mohd. Abdullah Momin for the period from 01.12.2013 to 12.01.2014 alongwith certificate u/s 65B of Indian Evidence Act as Ex. PW 15/G, Ex. PW 15/H and Ex. PW 15/I respectively.
The witness also further proved the CAF regarding mobile No.8348419636 alongwith ID proof and CDR of the said mobile number which as per record, was issued to Jangla Dass son of State vs. Mohd. Kaiyum & Anr.
FIR No. 02/2014PS: Special Cell Page no. 26 of 49 2 Hari for the period from 01.12.2013 to 12.01.2014 alongwith certificate u/s 65B of Indian Evidence Act as Ex. PW 15/J, Ex. PW 15/K and Ex. PW 15/L respectively.
The witness also further brought in court and proved proved the CAF regarding mobile No.9775819037 (of West Bengal) alongwith ID proof and CDR of the said mobile number which as per record, was issued to Sohrab son of Mohd. Farooq Momin son of Mohd. Abdullah Momin for the period from 01.12.2013 to 12.01.2014 alongwith certificate u/s 65B of Indian Evidence Act as Ex. PW 15/M, Ex. PW 15/N and Ex. PW 15/O respectively.
He also proved the cell ID chart of his company qua installation of mobile towers in Delhi and NCR vide Ex.PW15/P. PW-16 is HC Sanjay, is the witness to the recording of disclosure statement of the accused of accused Mohd. Kaiyum and Mohd. Habibuddin by the IO vide Ex.PW16/A and ex.PW16/B respectively.
PW-17 is Sh. V.R. Anand, Assistant Director, Ballistic, FSL Rohini. He received the sealed parcel containing live cartridges mark A1 to A7 and opined vide his report Ex.PW17/A that the cartridges A1 to A7 were ammunition as defined in Arms Act.
PW-18 is Sh. Ganga Ram. He is the owner of the scooty No. DL7S BD 8603 which was recovered from the possession of accused Kamal @ Sonu. He deposed that on 12.01.2014 at about State vs. Mohd. Kaiyum & Anr.
FIR No. 02/2014PS: Special Cell Page no. 27 of 49 2 11 am accused Kamal @ Sonu borrowed his scooter which was registered in the name of his wife, from him and after 20 minutes, he came to know that he was arrested by the police in the case of fake Indian currency notes and copy of the RC of the scooty and copy of election card of his wife has been exhibited as Ex.PW18/A and Ex.PW18/B. PW-19 is HC Sanjay Pal Singh. He was the member of the raiding team and reached at the spot and in his presence accused persons were apprehended in possession of FICN. He further deposed that SI Rajesh Malik took into possession the scooti vide memo Ex.PW19/A and also arrested the accused Kaiyum, Habibuddin and Kamal@ Sonu vide arrest memos Ex.PW19/B1 to Ex.PW19/B3 by conducting their personal search memos vide Ex.PW19/C1 to Ex.PW19/C3. Railway ticket recovered from the possession of accused Mohd. Kaiyum is Ex.PW19/E and was seized vide seizure memo Ex.PW19/D. The mobile phones recovered from the personal search of accused Mohd. Kaiyum, Habibuddin and Kamal @ Sonu are Ex.PW19/E1 to Ex.PW19/E3 respectively. Disclosure statement of the accused were recorded in his presence vide Ex. PW19/F1 to Ex.PW19/F3. In his presence, supplementary statement of accused Malal @ Sonu was recorded vide Ex.PW19/G, another supplementary disclosure statement of Kamal @ Sonu was recorded on 14.01.2014 vide Ex.PW19/J. He has further deposed about the recovery at the instance of accused Sonu and also about recording of voice sample of accused persons. He State vs. Mohd. Kaiyum & Anr.
FIR No. 02/2014PS: Special Cell Page no. 28 of 49 2 also identified the two mobile phones recovered one from the possession of Mohd. Kaiyum and another of accused Habibuddin in his presence and the phones are collectively exhibited as Ex.PW19/P9. He has also identified the cartridges recovered at the instance of accused Kamal @ Sonu vide Ex.PW19/P2.
Inadvertently PW number, PW No. 19 and PW 20 has been given to two witnesses. Hence PW19 HC Sushil Kumar be read as PW19A.
PW19A is HC Sushil Kumar. He collected two sealed pullanda on the instructions of IO from the MHCM and deposited the same to FSL.
PW20 is Inspector Dharmender Kumar. He was posted as Inspector in Special Cell and was also the member of the raiding team. He deposed about the working of special cell team on the syndicate involved in pumping and circulating fake Indian Currency Notes (FICN) printed in Pakistan and infiltrated in India through Bangladesh via West Bengal border. He deposed about the technical surveillance to develop the information and also deposed that receipt of information from deployed source. He being the member of the raiding party went to the spot and deposed about the arrest of the accused persons and recovery of FICN effected from their possession. He prepared the rukka Ex.PW2/A for the registration of the FIR. He has also identified the military colour silver colour bag from which FICN was recovered which was recovered from the accused Habibuddin State vs. Mohd. Kaiyum & Anr.
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vide Ex.PW20/P1.
PW21 is Sh. Manish Kumar. He provided the copy of voter ID card, election card of accused Kamal @ Sonu to the Special Cell.
PW22 is Sh. Munna Yadav. He has deposed about the purchase off mobile phone and SIM No.8447408283. He deposed that he never purchased the above phone number.
PW 23 is ASI Sanjiv Kumar. He was posted as MHCM. On 12.01.2014, he received the sealed parcel deposited by SI Rakesh Malik and made entry in register No.19 vide Ex.PW23/A dated 13.01.2014, Ex.PW23/B dated 14.01.2014, Ex.PW23/C Ex.PW23/C, dated 16.01.2014 Ex.PW23/D respectively. Entry 10.03.2014 Ex.PW23/F, entry dated 8.5.2014 Ex.PW23/G. Some of the articles which were sent to FSL Rohini through MHCM by making entry in register No.21 vide Ex.PW23/H, Ex.PW23/I, Ex.PW23/J and Ex.PW23/K. PW 25 is IO Inspector Rakesh Malik. He has deposed on the lines of prosecution and corroborated the testimony of prosecution witnesses. During his testimony, he has proved preparation of site plan Ex.PW5/DA, preparation of separate seizure memos qua the mobile phones/SIM cards recovered from the accused persons vide Ex.PW19/E1 to Ex.PW19/E3. He interrogated the accused persons and arrested accused Mohd. Kaiyum, Habibuddin and Kamal vide arrest memos Ex.PW19/B1 to Ex.PW19/B3. He also conducted State vs. Mohd. Kaiyum & Anr.
FIR No. 02/2014PS: Special Cell Page no. 30 of 49 3 their personal search memos vide Ex.PW19/C1 to Ex.PW19/C3 and also prepared their body inspection memos already Ex.PW19/F4 to Ex.PW19/F6. He also deposed that during the personal search of accused Mohd. Kaiyum, one railway ticket showing the journey from New Farakka to Delhi was found which he took into possession vide memo Ex.PW19/D. The ticket is already Ex.PW19/E. He also deposed about taking into possession the scooty recovered from accused Kamal vide memo Ex.PW19/A. He also deposed about depositing of the case property in the malkhana and recording of the disclosure statement of accused persons vide Ex.PW19/F1 to Ex.PW19/F3.
He further deposed that on 14.01.2014, he again interrogated accused Kamlal @ Sonu and recorded his disclosure statement Ex.PW19/J bearing his signature at point B. He also prepared the sketch of the cartridge vide memo Ex.PW1/A and took into possession the same vide memo already Ex.PW1/B, he also prepared the site plan of the place of recovery vide Ex.PW25/A. He further deposed that on 16.01.2014, he alongwith his team members took accused Kaiyum to Kolkata where he moved an application to the Supdt. Railways for purpose of verification of railway ticket recovered from accused Kaiyum and verification report and railway ticket chart are Ex.PW25/B. He got sent the exhibits to FSL, Rohini. Thereafter, he procured the voice sample of accused Kaiyum, Nishant, Kamal and Lokesh which were obtained by the CFSL expert in the lab of CFSL, Lodhi Colony, New Delhi.
He further deposed that he took into possession the micro State vs. Mohd. Kaiyum & Anr.
FIR No. 02/2014PS: Special Cell Page no. 31 of 49 3 SD card after sealing the same with the seal of RM vide seizure memo Ex.PW10/A. Similarly, the voice sample of Lokesh was also taken in SD card by the expert and he seized the same vide memo Ex.PW10/B. He further deposed that const. Abdul Ahed Khan handed over to him two DVDs containing the intercepted conversation of the accused persons which he took into possession vide memo Ex.PW25/C, seized the transcript of intercepted calls vide memo Ex.PW25/D. STATEMENT OF ACCUSED
9. After conclusion of Prosecution Evidence, statement of accused persons were recorded u/s 313 CrPC wherein they have denied the entire prosecution case. Accused Kamal @ Sonu has stated that he was lifted outside from his house at 12/12.30 noon on 12.01.2014 when he was going to take grocery articles. After that some of his neighbour informed his family members who made a call at 100 number. In response to the same, HC Prithvi Singh came to his house at 1.30 am and informed his family about arrest of Kamal at Special Cell, Lodi Colony. He made a DD entry 27A in this regard.
10. Accused Mohd. Kaiyum and Mohd. Habibuddin Momin also submitted that they have been falsely implicated in this case and nothing has been recovered from them.
DEFENCE EVIDENCE
11. On behalf of accused Kamal @ Sonu evidence in defence also led. DW1 ASI Prithvi Singh has been examined who has deposed about lodging of DD entry Ex.DW1/A regarding the State vs. Mohd. Kaiyum & Anr.
FIR No. 02/2014PS: Special Cell Page no. 32 of 49 3 call of family member of the accused.
12. I have heard and considered the submissions made by Sh.
Jitender Tiwari, Ld. Counsel for accused Kunj Bihari Pandey, Sh. Suresh Sisodia, Ld. Legal Aid Counsel for accused Safiq-ul- Alam and Sh. Ashok Kumar, Ld. Addl. PP for State and also carefully gone through the material available on record.
ARGUMENTS ON BEHALF OF ACCUSED :-
13. It is argued by Ld. defence counsels that accused have been falsely implicated in the present case. It is also submitted that prosecution has failed to prove any intention to do the crime and in the absence of any material to this respect, no offence is made out against them .
14. It is also argued that no public witness has been joined, in the absence of the same, reliance solely on the police witness can not be made.
15. It is further argued that there is no evidence on record with respect to involvement of the accused in the alleged conspiracy with co-accused persons. The recovered has been planted upon them. It is also submitted that there is no evidence of circulation or trafficking of FICN on the part of the accused. Ld. Defence counsel has further highlighted the contradictions in the State vs. Mohd. Kaiyum & Anr.
FIR No. 02/2014PS: Special Cell Page no. 33 of 49 3 testimony of the prosecution witnesses.
16. Ld. counsel for accused Kamal @ Sonu specifically argued that accused has been falsely implicated in this case as he was lifted from his house and DW1 has proved through the production of DD entry that story of the police does not match with the testimony of defence witnesses and also with the entire facts and circumstances as has been alleged against the accused.
It is also argued that there is nothing incriminating in the intercepted calls, same cannot be read in evidence in the absence of sanction from competent authority.
POINTS OF DETERMINATION :-
17. In order to bring home the charges for the commission of offence punishable u/s 120B IPC, prosecution is required to prove following ingredients :-
(I) That the accused persons entered into criminal conspiracy to do an illegal act i.e. transporting, possessing and circulation of FICN.
(II) That in pursuance to the said criminal conspiracy, there has been recovery of FICN from the possession of the accused persons.
18. In order to bring home the charges for the commission of offence punishable u/s 489B IPC, the prosecution is required to prove the following ingredients :-
(A) the currency-note or bank-notes in question were forged or counterfeit;FIR No. 02/2014
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(B) the accused sold to, or bought, or received, from, some
person, or trafficked in, or used, as genuine, such notes; and (C) when in doing so, he knew or had reason to believe that such notes were forged and counterfeit.
19. Similarly, to prove charges for the commission of offence u/s 489C the prosecution is required to prove that :-
(A) the accused were found in possession of the counterfeit currency notes.
(B) The accused were having knowledge of the same to be counterfeit and knowing it to be used as genuine.
20. The present case revolves around the fact that the Special Cell/NDR was working on bursting the syndicate which was involved in circulation of FICN in India, therefore, on the receipt of information from the secret informer a raiding team was constituted. The secret informer had informed that accused Kaiyum was coming to Delhi with a consignment of FICN for his further delivery to his associates. At the place of incident, accused Mohd. Kaiyum alongwith accused Mohd. Habibuddin came to the spot i.e. Indira Market and started waiting for the person who had to receive the delivery of FICN. Accused Kamal @ Sonu came there on his scooty. Accused Mohd. Habibuddin took out FICN from his military colour bag. Mohd. Kaiyum checked the same and handed over to the accused Kamal @ Sonu. Accordingly, the recovery was effected from the State vs. Mohd. Kaiyum & Anr.
FIR No. 02/2014PS: Special Cell Page no. 35 of 49 3 possession of Kamal @ Sonu from the dickey of his scooter whereas accused Mohd. Mohd. Habibuddin was also found in possession of FICN in his bag. Accused Mohd. Kaiyum was found facilitating the delivery of FICN.
21. The case against the accused persons is of their involvement in furtherance of criminal conspiracy of possession as well as involvement in circulation of FICN. The recovery has been effected from the possession of accused Habibuddin and Kamal @ Sonu, whereas, accused Mohd. Kaiyum was present there alongwith both the accused persons and he facilitated the circulation of FICN from accused Mohd. Habibuddin to Kamal @ Sonu. He himself has handed over the same to Kamal @ Sonu.
22. The prosecution based its case on the allegations of conspiracy between the accused persons and also their several other associates who were involved in circulation of FICN which were being arranged by accused Mohd. Kaiyum from his source from Bangladesh and lateron the said consignment of FICN was further circulated among his associates for his further circulation in India.
23. In order to prove the charges of conspiracy and inter se connectivity between the accused persons. The prosecution has examined Yogesh, Nodal Officer (PW2), Const. Abdul Ahad Khan (PW3) who prepared the transcripts, Vinod Kumar, Nodal Officer (PW4), Ms. Anuradha Dey for recording of voice sample (PW11), Sh. Israr Babu, Alternate Officer (PW15), Sh. Amitosh State vs. Mohd. Kaiyum & Anr.
FIR No. 02/2014PS: Special Cell Page no. 36 of 49 3 Kumar, Sr. Scientific Officer (PW20), Dr. Subrat Chaudhary (PW24) who carried out the examination of call recordings with specimen voice.
24. As per the case of the prosecution, there has been legal interception orders with respect to mobile phone Nos.977581037 and 8348419636. Both the mobile phones attributable to accused Mohd. Kaiyum and on the basis of intercepted calls, conversation taken place on these phone numbers with accused Habibuddin and Kamal @ Sonu, the prosecution relied upon the same to show that there has been inter connectivity between the accused persons and they have been talking regularly over the phones about the circulation about the circulation of FICN. PW12 ASI Satender Singh has been examined and vide Ex.PW12/A, he has proved the letter of Dy. Commissioner Sh. Sanjiv Kumar Yadav. As per the case of the prosecution, the sanction from the Home Ministry was obtained for the interception of these mobile phones but nothing has been brought on record in the form of sanction order from the Home Ministry allowing the interception of these mobile phone numbers. Merely referring the said order No. in the letter Ex.PW12/A is not sufficient. The prosecution was required to bring on record the sanction order and also the witness to prove the same. In the absence of such a vital piece of evidence, the interception which has been carried out under Indian Telegraph Act of the above said mobile phones, the contents of those intercepted conversation cannot be read in evidence.
FIR No. 02/2014PS: Special Cell Page no. 37 of 49 3
25. Ld. Addl. PP has pointed out that despite there being no sanction order still CDRs of the mobile phone of the accused persons are sufficient to show their inter-se connectivity and meeting of mind amongst them to prove the essential ingredients of criminal conspiracy. The call detail record, customer application form and cell ID location chart of respective mobile phone number used by respective accused persons has also been proved by the concerned witness and perusal of the same would reveal that accused Mohd. Kayum was using the mobile phone Nos.9775819037 and 8348419636, whereas accused Mohd. Habibuddin was using mobile phone No.8527206176 and accused Kamal @ Sonu was using mobile phone No.8447405338.
26. Although the subscription of some of the mobile phone numbers are not in the name of accused persons but the recovery of mobile phone alongwith the sim cards were effected from the possession of the accused persons and the members of the raiding team are witness to their respective seizures.
27. IMEI No. of mobile phone recovered from the possession of Mohd. Kaiyum is corresponding to the use of mobile phone/SIM car recovered from his possession. Similarly, IMEI No. of mobile phone recovered from the possession of accused Habibuddin is corresponding to the mobile phone No./SIM which was recovered from his possession.
28. Similarly, same is the case of accused Kamal @ Sonu although his IMEI No. of his handset does not reflect in the CDR but State vs. Mohd. Kaiyum & Anr.
FIR No. 02/2014PS: Special Cell Page no. 38 of 49 3 despite that the IMSI No. of Sim card which is recovered from his possession which is also reflected in the respective CDR shows that its use attributable to accused Kamal @ Sonu only. Despite the fact that subscription of Sim card of mobile phone which was recovered from the possession of accused persons are not there in their name but their IMEI No. and IMSI number of Sim card which is also reflected in the respective CDRs, specifically shows that respective Sim/mobile phone were being used by the accused persons themselves to contact each other. Although same is not the case of accused Mohd. Habibuddin as the mobile phone which was being used by him, it subscription were also in his own name.
29. The CDRs of these mobile numbers for the period from 01.01.2013 to 12.01.2014 collected by the IO and placed on record and has also been proved by the concerned Nodal officer of various services provider like Bharti Airtel and Vodafone. PW14 has proved the CDR of mobile phone No. of accused Mohd. Habibuddin No.8527206176 from 01.12.2013 to 12.01.2014. CDRs are Ex.PW14/B and certificate u/s 65 B of I.E.Act is Ex.PW14/D.
30. Similarly, Israr Babu, Alternate Nodal Officer(PW15) from Vodafone has proved the CDRR of mobile phone No. 8447405338 which was being used by accused Kamal @ Sonu from 01.12.2013 to 12.01.2014. The CDRs are exhibited as Ex.PW15/B.
31. PW14 has also proved the CDR pertains to No. 8348419636 State vs. Mohd. Kaiyum & Anr.
FIR No. 02/2014PS: Special Cell Page no. 39 of 49 3 which was being used by accused Mohd. Kaiyum for a period from 01.12.2013 to 12.01.2014 and the CDR is Ex.PW15/K and certificate u/s 65B IE Act is Ex.PW15/L.
32. The CDR shows that there is a communication/call through the mobile phone of accused Mohd. Kaiyum No. 8348419636 on the mobile phone of accused Mohd. Habibuddin No. 8527206176. Similarly, there is communication on the mobile phone of accused Mohd. Kaiyum from his mobile No. 8348419636 with the mobile No. 8447405338 which was being used by accused Kamal @ Sonu and the concerned CD in this regard is Ex.PW15/B. There is also conversation on mobile phone of accused Mohd. Kaiyum No. 977581037 with mobile No.8447405338 of accused Kamal @ Sonu.
33. The CDRs of mobile phone which was being used by the accused persons shows that there had been inter-se repeated calls on several occasions on the mobile phone numbers of accused Mohd. Kaiyum, Mohd. Habibuddin and Kamal @ Sonu. This evidence is sufficient to show that accused persons were known to each other and they were contacting each other regularly. The common number which has been regularly contacted by the accused persons Kamal @ Sonu and Mohd. Habibuddin is the mobile number which was being used by accused Mohd. Kaiyum.
34. The prosecution has also placed on record several intercepted conversations but in the absence of sanction order, no reliance can be placed on this piece of evidence although the State vs. Mohd. Kaiyum & Anr.
FIR No. 02/2014PS: Special Cell Page no. 40 of 49 4 conversation between the accused persons through mobile phone which is already reflected in the respective CDR , has sufficient to show their inter-se connectivity and their acquaintance with each other even prior to the day when they apprehended while dealing in FICN.
35. The present case is about possession of FICN and circulating thereof. Therefore, the prosecution is also required to prove on record beyond reasonable doubt the element of conspiracy amongst them in commission of the offence. It is well settled principle off law in most of the conspiracy, it is very difficult to lead direct evidence of the agreement amounting to criminal conspiracy. In such cases, the circumstances are required to be considered cumulatively and which are according to the facts and the evidence come up on record. Such circumstances which lead to the existence of conspiracy between the accused persons for the possession and circulation of FICN can be seen in the recovery effected from the possession of the accused persons.
36. On the basis of the secret information, the raiding party reached at the spot where accused Mohd. Kaiyum and Mohd. Habibuddin came and were kept waiting. As soon as accused Kamal @ Sonu came to the spot accused Habibuddin bring out FICN from his military colour bag the same was checked by Mohd. Kaiyum and handed over to accused Kamal @ Sonu who kept in the dickey of his scooter. From the dickey of his scooter, the raiding party recovered FICN of the worth around Rs. 2 lacs in the denomination of Rs.500/- each, whereas from the bag, State vs. Mohd. Kaiyum & Anr.
FIR No. 02/2014PS: Special Cell Page no. 41 of 49 4 which was in the possession of accused Mohd. Habibuddin Momin, there has been a recovery of FICN worth around Rs.3 lacs in the denomination of currency notes of Rs.1000/-. Accused Mohd. Kaiyum was found facilitating the delivery of the consignment to Kamal and at the time of supply of FICN, he himself handed over the polythene bag to Kamal after taking it from Habibuddin and checked up. The same wads of FICN recovered from the dickey of the scooter of Kamal @ Sonu. All the accused persons were apprehended at the spot while having in possession and trafficking the FICN by changing hands. Previous acquaintance of accused persons and their previous conversation is already established by the CDR of the respective mobile phone which was being used by them which has already been proved by the prosecution witnesses. The recovery from the possession of Mohd. Habibuddin and Mohd. Kaiyum is also proved by the prosecution witnesses. The witnesses has also described the entire incident of recovery of FICN from the possession of accused persons and their individual role in such supply. PW5 SI Maninder Singh, PW HC Anil Rao, PW19 HC Sanjay Pal Singh, PW 20 Inspector Dharmender Kumar and PW25 Inspector Rakesh Malik, IO were the witnesses who were present at the spot at the time of recovery and they have corroborated each other's testimony with respect to the recovery, possession and exchange of the FICN amongst the accused persons.
37. Ld. defence counsel although argued that the prosecution has not State vs. Mohd. Kaiyum & Anr.
FIR No. 02/2014PS: Special Cell Page no. 42 of 49 4 joined the public witness in order to prove the recovery from the possession of the accused persons beyond reasonable doubt. On this point, I place reliance upon the judgment of Karamjit Singh v. State (AIR 2003) SC 1311 and Izazul v. State 2007 (IV) RCR (Crl) 315. It is a matter of common knowledge that members of the general public for obvious reasons these days are reluctant to come forward and testify. Merely because, the prosecution has failed to examine any public witness, the other credit worthy witnesses and clinching testimonies of the police officials cannot be discarded only on the ground that they were police officials. Therefore, the contention of Ld. defence counsel is not tenable in view of the facts and circumstances of the present case.
38. Ld. defence counsel for the accused Mohd. Kaiyum has argued that there is no recovery has been effected from the possession of the accused, therefore, charges against him of possessing the FICN are not proved. On this point, I am of the view that accused Mohd. Kaiyum was present at the spot along-with accused Mohd. Habibuddin and Kamal @ Sonu and as per the deposition of the witnesses, he after taking the polythene of FICN from accused Habibuddin, checked the same and handed it over to accused Kamal @ Sonu. Despite there being no recovery from his possession, accused Mohd. Kaiyum was found supplying the wads of currency notes to other co-accused.
39. The evidence in the offence of criminal conspiracy is usually implied and inferred from the facts of each case and is a State vs. Mohd. Kaiyum & Anr.
FIR No. 02/2014PS: Special Cell Page no. 43 of 49 4 complicated exercise since conspiracy often pertains to a common design planned in the mind of an individual. It is settled law that direct proof of common intention is rarely available and therefore, such intention is to be inferred from proven facts/circumstances of the case.
40. In the present case, charge has been framed u/s 120B IPC of criminal conspiracy from the conduct and action of accused persons, the court can draw presumption u/s 114 of Indian Evidence Act having regard to the natural course off events and human conduct to show the nexus between the accused persons. Here, the accused Mohd. Kaiyum is actively involved with the accused persons in communicating through his mobile phone, the CDR of which has already been proved. He also came along- with accused Habibuddin for the supply of FICN and the raiding team was constituted on the secret information that accused Mohd. Kaiyum was coming with the consignment of FICN for its onward delivery to his associates for its further circulation. The conduct of the accused is sufficient to show his involvement in the conspiracy of supply of FICN. It is well settled principle of law that activities of each and every accused persons are not to be seen in isolation. To prove the conspiracy, the evidence available on record should clearly indicates towards the existence of inter se link of accused persons. Therefore, arguments of Ld. Defence counsel is not tenable in this regard.
41. On behalf of accused Kamal @ Sonu, DW1 Prithi Singh is examined. This witness is summoned by the accused in order to State vs. Mohd. Kaiyum & Anr.
FIR No. 02/2014PS: Special Cell Page no. 44 of 49 4 establish that the arrest of the accused is illegal which does not match with the story of the prosecution as accused was not apprehended from the spot in possession of FICN and which is evident from the testimony of DW1 Prithi Singh who recorded the DD entry of the call of lifting of accused Kamal @ Sonu. DW1 has deposed that on 12.01.2014 at about 1.17 pm he was entrusted the DD of the call qua accused Kamal that he had been taken away by the police officials in plain clothes. He also stated about another DD entry about non return of the accused at his house who has gone to buy Kachori from the market. DW1 attended the call and on inquiry he also came to know that accused was taken away by police of Special Cell, Lodi Colony.
As per the defence of the accused that he was lifted from his home at about 11 am and it has been argued that DD entry got registered regarding the missing of the accused does not match with the story of the prosecution as he was lifted by the police around 11 am. In support of the arguments Ld. Defence counsel has further referred to the testimony of PW18 Ganga Ram who also stated that accused borrowed his scootey at about 11 am for some work and after 20 minutes later he came to know that he has been arrested in a case of FICN. A very contradictory defence has been taken on behalf of accused. On the other hand in statement u/s 313 CrPC accused has himself has stated that he was lifted outside his house at 12/12.30 noon on 12.01.2014 when he was going to take grocery articles and accordingly, 100 number call was made by his family members.
FIR No. 02/2014PS: Special Cell Page no. 45 of 49 4 Time of arrest in the story of prosecution is also the same. On one hand, testimony of PW18 is being relied upon and on another hand, statement of section 313 is totally in contradiction to this defence. Even version of accused u/s 313 CrPC also matches with the story of the prosecution. As per the testimony of the member of the raiding team, they reached at the spot at around 12 am, thereafter, accused persons came at the spot and apprehended while transacting and having found in the possession of FICN. The witnesses have proved the arrest of the accused persons from the spot which is further corroborated by DW1 Prithi Singh to whom the DD entry was entrusted at 1.17 pm and he reached the spot at 1.30 pm. The information about the lifting of the accused by the police person was not given at 11am. It was infact after 12 pm. when the family members of the accused has come to know about his arrested by the police in the case of FICN. Just to create a defence, the information was forwarded at 100 number after his arrest after 12.O clock noon. Therefore, the defence taken by the accused on these points is not tenable.
42. It has never been the defence of accused persons that notes recovered from them were not counterfeited. Nothing in the cross-examination of witness such defence is put forward even in 313 CrPC statement he has not disputed the same.
43. So far as proving the commission of offence u/s 489C, currency notes were recovered from the possession of accused persons which has been specifically proved by the witnesses. Ld. State vs. Mohd. Kaiyum & Anr.
FIR No. 02/2014PS: Special Cell Page no. 46 of 49 4 Defence counsel has failed to breach the testimony of the witnesses on the point of recovery and arrest. Therefore, possession of FICN is proved from the possession of accused Mohd. Habibuddin Momin and Kamal @ Sonu. Since possession from them is on account of criminal conspiracy, all of them therefore, all are liable for this recovery.
44. So far as the allegations of trafficking u/s 489B is concerned, in furtherance of their common intention, accused persons met and exchanged FICN amongst them which has been established in the testimonies of prosecution witnesses namely PW5 SI Maninder Singh, PW HC Anil Rao, PW19 HC Sanjay Pal Singh, PW 20 Inspector Dharmender Kumar and PW25 Inspector Rakesh Malik, IO. These currency notes were handed over to accused Mohd. Kaiyum by accused Habibuddin Momin in furtherance of the conspiracy and which were recovered from Kamal @ Sonu.
45. After all, from the possession of such a huge amount of FICN, it can easily be inferred that the sole intention of accused persons was of its circulation otherwise, why a person would be carrying such a huge amount of FICN with him. Therefore, such an exchange of FICN amongst the accused persons is sufficient to prove that the FICNs were being received and trafficked as defined u/s 489B IPC and all the accused persons were found involved in possession of FICN and exchange thereof.
46. Therefore it is proved that accused persons entered into criminal conspiracy to do an illegal act of transporting, State vs. Mohd. Kaiyum & Anr.
FIR No. 02/2014PS: Special Cell Page no. 47 of 49 4 possession and circulation of FICN. It is also proved that the currency notes or bank notes in question were forged and counterfeited. It is also proved that accused persons were found its possession and indulged in trafficking of FICN with having full knowledge that the same are fake Indian currency. Therefore, charges u/s 120B IPC and section 489B and 489C readwith section 120B IPC are proved against the accused persons.
47. In the present case charge is also framed u/s 25 Arms Act regarding the recovery of seven live cartridges from the possession of accused Kamal @ Sonu. PW1 SI Vikas Mudgal is examined in this regard and he has proved the sketch of live cartridges as Ex.PW1/A and also the seizure memo of the same vide Ex.PW1/B. The offence alleged against the accused pertains to section 3 of Arms Act 1959 about the possession of ammunition without a valid licence with him which is punishable u/s 25 Arms Act. The prosecution under the Arms Act cannot be instituted in the absence of previous sanction of District Magistrate u/s 39 of Arms Act. There is no sanction from the Competent Authority for initiation of the prosecution case against the accused. Therefore, charges against accused Kamal @ Sonu u/s 25 Arms Act is not sustainable. Hence he is acquitted from the same.
FIR No. 02/2014PS: Special Cell Page no. 48 of 49 4
48. Accordingly, in view of the above discussion, accused Mohd.
Kaiyum, Mohd. Habibuddin Momin and Kamal @ Sonu are held guilty for commission of offence punishable u/s 120B IPC and offence punishable u/s 489B and 489C IPC readwith section 120B IPC. They are convicted thereunder.
49. Let accused persons be heard on the point of sentence .
50. In terms of the directions of Hon'ble High Court in the matter of Karan Singh v. State of NCT of Delhi in Crl. A. No. 352/2020 dated 27.11.2020, convicts Mohd. Kaiyum @ Kaiyum, Mohd. Habibuddin Momin @ Momin and Kamal @ Sonu are directed to file their affidavits of their assets and income alongwith directions to State through Ld. Addl. PP to file a report/affidavit with regard to expenses incurred by State for the litigation in the present case. Digitally signed by SANJAY SANJAY KHANAGWAL KHANAGWAL Date: 2023.05.17 14:02:25 +0530 Announced in the open court on 12.05.2023 ( Sanjay Khanagwal ) ASJ-02:NDD:PHC State vs. Mohd. Kaiyum & Anr.
FIR No. 02/2014PS: Special Cell Page no. 49 of 49
4
SC No. 8942/2016
State v Mohd. Kaiyum & Others
FIR No.02/2014
P.S Special Cell
12.05.2023
Present: Sh. Ashok Kumar , Ld. Addl. PP for State.
Accused Mohd. Habibuddin Momin, Kamal @
Sonu and Mohd. Kaiyum present on bail.
Sh. Bishnu Kumar Ld. Counsel for accused Mohd. Kaiyum and Habibuddin Momin.
Ms. Priyanka Singh Ld. Proxy counsel for accused Kamal @ Sonu.
Vide separate judgment, accused Mohd. Kaiyum, Mohd. Habibuddin Momin and accused Kamal @ Sonu are convicted for offence punishable 120B IPC and u/s 489B/489C readwith section 120B IPC.
As per the directions as laid down by Hon'ble High Court in the matter of Karan Singh v. State of NCT of Delhi in Crl. A. No. 352/2020 dated 27.11.2020 convicts Mohd. Habibuddin Momin, Kamal @ Sonu and Mohd. Kaiyum are directed to file the affidavit of their assets and income alongwith directions to State through Ld. Addl. PP to file a report/affidavit with regard to expenses incurred by State for the litigation in the present case.
List the matter for arguments on the point of Digitally signed by SANJAY sentence on 16.05.2023. SANJAY KHANAGWAL KHANAGWAL Date: 2023.05.17 14:03:23 +0530 (Sanjay Khanagwal) ASJ-02, NDD/PHC/New Delhi 12.05.2023