Delhi District Court
State vs 1) Mohd. Kamil on 29 July, 2015
IN THE COURT OF SH. REETESH SINGH, ASJ-02, NEW DELHI
DISTRICT, PATIALA HOUSE COURTS, NEW DELHI
Case ID No. 02403R0136812013
Sessions Case No. 170/2013
State Versus 1) Mohd. Kamil
S/o Mohd. Ramjanni
R/o Village Nangla, Rai Khera,
PS Kairana Distt., Samli, U.P.
2) Anwar Ali
S/o Late Sh. Nathu Ahmed
R/o Village Mehwar Kalan,
PS Kotwali Roorke, Distt. Haridwar,
Uttrakhand.
3) Razia
D/o Ikram
R/o Village & PS Chilkakna,
Mohalla Mazar Hassan,
Distt. Saharanpur, U.P.
4) Mohd. Maqsood Alam
S/o Mohd. Sirajuddin
R/o Village Bakarpur
PS Mufassil,
Distt. Munger, Bihar.
FIR No. : 28/2013
U/s: 489-B/489-C/120-B IPC
PS: Special Cell
Date of institution of the case : 09.10.2013
Date when the case reserved for judgment : 10.07.2015
Date of announcement of judgment : 29.07.2015
JUDGMENT
1. The accused Mohd. Kamil, Anwar Ali and Razia are facing State vs. Mohd. Kamil & Ors.
FIR No. 28/2013, PS: Special Cell 1/54 trial in this Court for offences alleged to have been committed by them and punishable under Sections 489 B and 489 C and Section 120B of the Indian Penal Code (IPC). The accused Mohd. Maqsood Alam is being tried for the offence under Section 120 B IPC.
2. The case of the prosecution as per the police report under section 173 (2) of the Cr. P.C is that on 24.06.2013 SI Satish Rana (PW17) received information at about 4.30pm from a secret informer that accused Mohd. Kamil was involved in the racket of distribution of Fake Indian Currency Notes (FICN) and would be coming to Delhi after purchasing FICN from one Maqsood belonging to Munger, Bihar. The secret informer revealed that Mohd. Kamil would be coming with FICN to sell the same to some person at ISBT Kashmiri Gate at about 6.30 to 7pm. PW17 produced the secret informer before Inspector In-charge Subhash Vats who discussed the information with senior officers and direction was given to constitute a police team to apprehend the accused. Inspector Subhash Vats constituted a a raiding team comprising SI Satish Rana (PW17), ASI Ajay Vir, HC Surender Kumar, HC Ashok Kumar (PW9), HC Umesh Kumar, HC Raj Kumar, HC Ram Gopal and HC Sanjiv Kumar. The police team with the secret informer under the supervision of PW17 left the office of the Special Cell at about 5.15 pm recorded vide DD No. 15 dated 24.06.2013 Ex.PW17/A in a Govt. Gypsy bearing registration no. DL1CJ3846 being driven by PW9 HC Ashok Kumar and a private motorcycle on which HC Umesh Kumar and HC Raj Kumar were riding. The police team reached ISBT Kashmiri Gate at about 6pm and positioned themselves near a gate opening towards Tis Hazari. PW17 tried to associate five pedestrians with the proceedings of the police team, but all of them declined and went away State vs. Mohd. Kamil & Ors.
FIR No. 28/2013, PS: Special Cell 2/54 citing genuine reasons without disclosing their names and addresses. PW17 parked the govt. gypsy about 20 feet before the gate and PW9 was left in the vehicle. PW17 positioned HC Surinder Kumar, HC Ram Gopal and the secret informer before the gate and the rest of the police team positioned themselves ahead of the gate by about 6.15 pm.
3. At about 6.30 pm one person was seen carrying a dark brown bag on his right shoulder who came from inside ISBT and stood near the gate for sometime. The secret informer identified the said person as Mohd. Kamil and went away from the spot. When Mohd. Kamil started walking on the street PW17, after signaling the members of the police team, started walking behind him. HC Ashok Kumar, HC Umesh Kumar, HC Raj Kumar and HC Ram Gopal were signaled by PW17 when the said person stopped at the road going towards Shahdara and was talking on his mobile phone on the footpath. After ten minutes one person came and started talking to him. Mohd. Kamil took out one wad of notes from his bag and handed it over to the other person who put the same in the right pocket of his kurta. The moment both these persons started going towards Shahdara at about 7pm, PW17 with the help of PW3 and PW11 overpowered them. Kamil was apprehended by PW17 and PW11 while the other person was apprehended by PW3. Both these persons disclosed their names as Mohd. Kamil and Anwar Ali. They were informed about the secret information which had been received about them and that they were required to be searched. Both refused to be personally searched and the refusal was recorded by PW17 vide memo Ex.PW17/B. PW17 requested 4-5 persons of the public to join the proceedings of the police team but all of them refused. PW17 thereafter carried out the personal State vs. Mohd. Kamil & Ors.
FIR No. 28/2013, PS: Special Cell 3/54 search of Mohd. Kamil. One green coloured plastic packet was found from his bag which had something written in Bengali. The same contained three wads of currency notes of denomination Rs.1000/- and one wad of currency notes of denomination Rs.500/- with each wad having 100 notes. The total value of the FICN were Rs.3,50,000/-. All the currency recovered appeared to be fake. These four wads were marked as G1 to G4 by PW17. Wads G1 and G2 were kept in a plastic container Mark K1 and wads G3 and G4 were kept in another plastic container Mark K2. The plastic containers were thereafter sealed with the seal of 'SR' and seized vide seizure memo Ex.PW3/B.
4. The personal search of Anwar Ali revealed that he had in the right pocket of his kurta one wad of FICN with 100 notes of denomination of Rs.500/-, total value Rs.50,000/- which too appeared to be fake. This wad was marked as G5 and kept in another plastic container Mark-A. This plastic container was thereafter sealed with the seal of 'SR' and seized vide seizure memo Ex.PW3/A.
5. After the recoveries were effected, PW17 prepared the rukka Ex.PW17/C and sent the same to the police station through PW11 for registration of the FIR. PW1 ASI Krishan Pal registered the FIR Ex.PW1/A on which he made his endorsement Ex.PW1/B. Investigation of the matter was assigned to PW5 SI Amrik Singh and PW1 sent the copy of the FIR and rukka to PW5 through PW11.
6. PW5 reached the spot of the apprehension and the custody of the accused persons along with the recovered FICN in sealed condition with the memos were handed over to PW5 by PW17.
FIR No. 28/2013, PS: Special Cell 4/54 PW5 wrote down the details of the FIR on the documents and pullandas and PW5 prepared the site plan Ex.PW5/A at the instance of PW17. PW5 also tried to associate 4-5 persons of the public to join his proceedings but all refused. PW5 arrested accused Mohd. Kamil and accused Anwar Ali vide memos Ex.PW3/C and Ex.PW3/D (respectively), carried out their personal search vide Ex.PW3/E and Ex.PW3/F (respectively) and recorded their disclosure statements vide Ex.PW3/G and Ex.PW3/H (respectively). Two mobile handsets and two SIM cards were recovered from Mohd. Kamil which were seized vide memo Ex.PW3/J after recording the IEMI numbers.
7. In his disclosure statement Ex.PW3/G accused Mohd. Kamil has stated that about 10 to 12 years ago, he became involved in the trade of FICN and that he had been apprehended earlier on two occasions in Muzaffarnagar and Saharanpur while trafficking FICN. He disclosed that about 1 ½ years ago, he came in touch with one Noorulla of his village who gave him FICN. Noorulla took him to Jamalpur and introduced him Maqsood, r/o. Munger Bakarpur Bihar and one Danish @ Tajjudin. He further disclosed that Danish @ Tajjudin and Maqsood started supplying him FICN. Sometime ago he also met one accused Anwar Ali who had asked him to supply FICN and on whose asking he gave him FICN. He further disclosed that he had supplied FICN to Noorulla, Razia, Mehmood and Shahzad of U.P. and Jitender, Beera and Shera of Haryana.
8. In his disclosure statement Ex.PW3/H accused Anwar Ali stated that he was earning income by giving tuitions but was in dire need of money. Through some person he came to know that Mohd.
FIR No. 28/2013, PS: Special Cell 5/54 Kamil was involved in trafficking of FICN and contacted him. He further disclosed that on 24.06.2013 he had gone to Metro Station near ISBT and called accused Kamil on phone and received FICN Kamil who had come to the spot but he was apprehended.
9. The accused Mohd. Kamil and Anwar Ali were brought to the police station by PW5 who deposited the seized property in the Malkhana. The bag of Mohd. Kamil was checked and found to be containing daily use articles and the bag and its contents were kept in a sealed parcel sealed with the seal AS and seized vide memo Ex.PW3/I. Police custody of Mohd. Kamil was sought and granted. Mohd. Kamil led the police team to village Bakarpur, Dist. Munger Bihar to the house of Maqsood but he could not be found and the police team with PW5 came back to Delhi.
10. Mohd. Kamil had also revealed the address of his associate Razia. On 25.07.2013, PW5 with other members of the police team went to the house of Razia at village Chilkana, Sharanpur U.P. but she could not be found.
11. On 28.07.2013 a secret informer met PW5 in the office of Special Cell and revealed that Razia would be coming from Bihar with FICN at the IN-gate of ISBT Anand Vihar at about 4:30pm. PW5 discussed this information with Insp. Subhash who intimated Senior Police Officers and direction was given to take immediate action. Information so received was recorded vide DD No. 5 Ex.PW5/E and PW5 constituted a team comprising of himself, WSI Nirmala (PW4) and PW11. The police team left the office in government gypsy bearing State vs. Mohd. Kamil & Ors.
FIR No. 28/2013, PS: Special Cell 6/54 registration number DL-1CJ-3846 driven by Ct Manish Kumar. The team recorded its departure vide DD No. 5 at about 3:30pm and reached the IN-gate of ISBT Anand Vihar at about 4pm. PW5 tried to associate 4-5 members of the public with these proceedings but all of them refused. At about 4:30pm, the secret informer pointed out the accused Razia who was standing at the IN-gate with one black and purple coloured ladies bag. The police team disclosed their identity to her and also the information they had about her. She was offered the search of the members of the police team and police vehicle but she refused which was recorded in the memo Ex.PW5/B. PW4 searched the accused Razia inside the police gypsy and found 100 FICN of denomination Rs.1000/- each in her bag. PW5 noted down the serial numbers of the FICN and kept them in an envelope Mark-R and sealed the same with the seal of AS and seized the FICN vide memo Ex.PW4/B. PW5 prepared the site plan Ex.PW5/C and arrested her vide memo Ex.PW4/C. Personal search of Razia was recorded in the memo Ex.PW4/D which was carried out by PW4 which revealed one bus ticket of Moradabad to Delhi Ex.PW4/F which was pasted on a white paper by PW5. PW5 recorded the disclosure statement Ex.PW4/E of Razia and she was brought to the office with the case property being deposited in the Malkhana. The police team recorded DD No. 9 Ex.PW5/F in this regard after coming back to Special Cell.
In her disclosure statement Ex.PW4/E Razia stated that she required money to arrange for the marriage of her second daughter and came across one Noorulla who used to visit the mobile phone shop of her son Salman. She asked Noorullah for some money to arrange marriage of her daughter and Noorullah introduced her to trade of trafficking of FICN. Noorullah took her to village Bakarpur, Distt.
FIR No. 28/2013, PS: Special Cell 7/54 Munger, Bihar and introduced to Maqsood. Maqsood gave her FICN to be handed over to one Salim of her village. Through Noorullah she also came to be introduced to accused Kamil who was also involved in the trafficking of FICN after procuring the same from Maqsood. This time (at the time of her apprehension), she had brought FICN of Rs.1,00,000/- from Maqsood to Delhi to be handed over to Salim but before she could do so, she was apprehended. She also disclosed the phone / mobile numbers through which she was in touch with Maqsood.
12. On 31.08.2013 PW5 went to village Chilkana, District Shaharanpur and made enquiries from Ikram, husband of Razia. Ikram handed over SIM Cards of mobile numbers 9627971018 and 8650223050 to PW5. The SIM Cards Ex.PW6/1 and Ex.PW6/2 were put in a match box, kept in a cloth parcel and sealed with the seal of AS and seized vide memo Ex.PW6/A. The mobile numbers disclosed by Razia were found to be already under interception of the Special Cell. Call detail records (CDRs) of the said numbers were obtained. After completion of investigation PW5 filed a charge-sheet against the accused Anwar Ali, Mohd. Kamil and Razia. PW5 also took steps for issuance of process under Sections 82 / 83 Cr.P.C. against the accused Mohd. Maqsood and Tajuddin as they could not be found.
13. On 11.12.2013, SI Vinod Kumar (PW23) along with Ct Himanshu (PW24) had gone to Village Bakkarpur, Dist. Munger Bihar to execute the process against the accused Mohd. Maqsood under Sections 82 / 83 of the Cr.P.C. At the time of execution of the process, Mohd. Maqsood was found at his premises and was apprehended and arrested vide memo Ex.PW8/X, personally searched vide memo State vs. Mohd. Kamil & Ors.
FIR No. 28/2013, PS: Special Cell 8/54 Ex.PW8/Y. PW23 was granted transit remand of Mohd. Maqsood by the Local Court and was brought to Delhi. PW5 recorded the disclosure statement of the accused Mohd. Maqsood vide memo Ex.PW24/A.
14. In his disclosure statement Ex.PW24/A, Maqsood Alam has stated that he was resident of village Bakarpur, Distt. Munger, Bihar and was engaged in the trafficking of FICN for the past several years. He used to collect FICN from one Shahbuddin from Munger Tempo Stand. He has stated that he was engaged in the trade of FICN along with Tajjudin and Shahbuddin. He used to give his mobile number 9852163130 and his bank account no. 32133791844 of SBI Bardah Munger to the persons wanting supply of FICN. The purchaser of FICN would telephoned to him on said mobile phone number and thereafter deposited money in his bank account against which he would supply FICN to them. He had given the details of his bank account and mobile number to Razia as well as Kamil.
15. PW5 obtained the bank account records of State of Bank of India (SBI) pertaining to A/c No. 32133791844 maintained at Bardah and the same was found to be in the name of Mohd. Maqsood. The records further revealed that between 20.5.2013 to 26.6.2013, there had been ten deposits of cash in the said account having been deposited from the branch of SBI at Chilkana Sultanpur. Out of the same nine deposits had been effected by Salman, son of accused Razia and one by Mohd. Ikram, her husband. The details of the deposits were tabulated in the supplementary charge sheet qua Mohd. Maqsood as under:-
State vs. Mohd. Kamil & Ors.
FIR No. 28/2013, PS: Special Cell 9/54
S.No. Date of Place of deposit Amount of deposit Name of
deposit at SBI Branch in SBI A/c No. depositor and
11465 Chilkana 32133791844 relation with
Sultanpur, UP Branch Bardah in accused
the name of Mohd.
Maqsood
1 20/05/13 -do- Rs. 25000/- Salman, s/o of
accused Razia
2 21/05/13 -do- Rs. 18000/- -do-
3 23/05/13 -do- Rs. 25000/- -do-
4 01/06/13 -do- Rs. 25000/- -do-
5 03/06/13 -do- Rs. 25000/- -do-
6 06/06/13 -do- Rs. 11000/- -do-
7 10/06/13 -do- Rs. 25000/- -do-
8 11/06/13 -do- Rs. 25000/- -do-
9 13/06/13 -do- Rs. 25000/- Mohd.Ikram, H/o
accused Razia
10 26/06/13 -do- Rs. 24500/- Salman, s/o of
accused Razia
16. PW23 had been directed to listen to the intercepted calls of mobile number 9852163130 of Mohd. Maqsood. PW23 prepared the transcripts Ex.PW23/A of conversations on this number with effect from 14.07.2013 to 28.07.2013. PW23 handed over the transcripts, two CDs containing the intercepted conversations of mobile number 9852163130 with a certificate Ex.PW5/D under Section 65B of the Indian Evidence Act and copies of interception orders to PW5. PW5 kept the same in two sealed pullandas Mark C1 and Mark C2 and seized them vide memo Ex.PW23/B. Mohd. Maqsood was taken to CFSL CBI where his voice sample was recorded in a memory card by Sunil Kumar PW25 State vs. Mohd. Kamil & Ors.
FIR No. 28/2013, PS: Special Cell 10/54 and Ravinder Kumar PW26, Lab Assistants, CFSL CBI. The memory card was sealed and seized vide memo Ex.PW9/B.
17. The FICN seized from Anwar Ali, Kamil and Razia had been sent for examination to CFSL CBI Lodhi Road. D.R. Handa, Senior Scientific Officer, PW7 found them to be fake vide his reports Ex.PW7/A and Ex.PW7/B. PW5 recorded statements of the witnesses and filed a supplementary charge-sheet qua Mohd. Maqsood.
18. By order dated 20.11.2013 charges were framed against Mohd. Kamil, Anwar Ali and Razia under Sections 120B and 489B / 489C of the IPC to which they pleaded not guilty and claimed trial.
19. Charge was framed against the accused Mohd. Maqsood under Section 120B of the IPC on 21.04.2014 to which he also pleaded not guilty and claimed trial.
20. In all the prosecution has examined 27 witnesses to bring home the charges against the accused persons. After closure of prosecution evidence statement of the accused persons were recorded under Section 313 of the Cr.P.C. in which they claimed false implication.
All the accused persons except accused Anwar Ali led evidence in defence. DW1 is Mohd. Imitiaz, son-in-law of the accused Mohd. Maqsood. DW2 is Shahnawaz, younger brother of accused Kamil. DW3 is Salman, son of accused Razia. DW4 is Ikram, husband of accused Razia. DW5 is Nasima, neighbour of accused Razia. No other witness was examined in defence on behalf of the accused persons.
FIR No. 28/2013, PS: Special Cell 11/54 EVIDENCE OF WITNESSES EXAMINED BY THE PROSECUTION
21. PW1 is ASI Krishan Pal who had recorded FIR Ex.PW1/A on the basis of rukka brought by HC Surender with endorsement of SI Satish Rana. He had made an endorsement on the rukka at Ex.PW1/B and sent the same to SI Amrik Singh through HC Surender. In cross- examination on behalf of Razia, he deposed that HC Surender remained in his office from 10:40 pm till 12:10 am and the rukka was sent by SI Satish Rana. He was not subjected to any cross-examination on behalf of the other accused accused persons through their counsel.
22. PW2 HC Sanjeev was the MHCM, PS Special Cell. He produced registers no.19 and 21. He stated that on 28.07.2013, SI Amrik Singh deposited two sealed parcels with the seal of AS and jama- talashi items of Razia along with copy of seizure memo, personal search memo and FSL Form. He stated that the relevant entry was made at serial no. 2159 in register no.19 Ex.PW2.A. He stated that on 31.08.2013, SI Amrik Singh had deposited with him one sealed parcel sealed with the seal of AS with copy of seizure memo which was entered at serial no. 2177 in register no.19 Ex.PW2/B. He deposed that on 31.07.2013, he had handed over sealed parcel with the seal of AS marked R with FSL form to HC Gyaender vide RC No. 141/21 to be deposited with CFSL CBI. He stated that HC Gyaender handed over receipt to him. He produced original register no.21 and exhibited copy of RC No. 141/21 as Ex.PW2/C. In cross-examination on behalf of accused Razia, he deposed that he was on duty for 24 hours and could not stated what was in the parcel. He deposed that parcels were in State vs. Mohd. Kamil & Ors.
FIR No. 28/2013, PS: Special Cell 12/54 sealed condition. He stated that his statement was recorded on 28.07.2013. He denied the suggestion that the entries in register no.19 were manipulated. Remaining accused persons did not cross examine him despite grant of opportunity.
23. PW3 HC Ram Gopal was part of the police team which apprehended the accused Mohd. Kamil and Anwar Ali on 24.06.2013. In his examination in chief, he has deposed as per version of the prosecution. PW3 has not been subjected to any cross-examination on behalf of the accused Kamil and Anwar Ali. He was cross-examined on behalf of the accused Maqsood in which he stated that he was not associated with the part of investigation regarding apprehension of Maqsood.
24. PW4 WSI Nirmala Kumar was part of the police team which apprehended Razia on 28.07.2013 and effected recoveries from her. She has deposed in her examination in chief as per version of the prosecution. PW4 was not cross-examined on behalf of Kamil, Anwar Ali and Razia. In cross-examination on behalf of Maqsood, she deposed that he was not associated with the part of investigation regarding apprehension of Maqsood.
25. PW5 SI Amrik Singh is the IO of the case. The investigation was assigned to him after accused Mohd.Kamil and Anwar Ali were apprehended by the police team on 24.06.2013. He was also instrumental in the apprehension of the accused Razia and Maqsood. He has deposed in his examination in chief as per version of the prosecution. In cross-examination on behalf of accused Maqsood and State vs. Mohd. Kamil & Ors.
FIR No. 28/2013, PS: Special Cell 13/54 Mohd. Kamil, PW5 deposed that he could not remember whether he obtained the Call Detail Records of two mobile phones recovered from Mohd. Kamil or not. He stated that he had not moved any application to the Service Providers to give location of mobile phones. He had gone to house of Kamil in Shamli, U.P. from Delhi for which it took him about 2 ½ -3 hours. He stated that he had gone there after recording departure entry. He stated that he took about 14-15 hours to reach Munger, Bihar from Delhi by train. He did not remember where he had gone Munger directly or by changing trains. He deposed that Kamil and Anwar had not revealed any phone details of Razia and he came to know the phone number of Razia from Maqsood. He stated that the secret informer had told him that Razia would be coming from Bihar and would reached the Delhi at Anand Vihar, ISBT by bus. He did not know the time it takes to reach Delhi from Munger by bus. He stated that the transcripts read over to Maqsood at CFSL, CBI, Lodhi Road were in Hindi and prepared by experts. He admitted that Razia was never taken to CFSL, CBI and her voice samples were not taken. He admitted that no specific permission for obtaining the voice samples of Maqsood was taken from the Court. He did not remember the date when he obtained the result of voice sample from CFSL, CBI. He did not remember the date from which the interception of phone calls of Razia and Maqsood had been initiated. He had prepared the documents regarding Kamil after he reached the spot itself while sitting in gypsy. He stated that the spot was well lit and same had been incorporated in the site plan.
26. PW5 in cross-examination on behalf of Razia and Anwar Ali deposed that on 28.07.2013, he had gone to office at 9am and he State vs. Mohd. Kamil & Ors.
FIR No. 28/2013, PS: Special Cell 14/54 had reached Anand Vihar ISBT via Barapulla. He stated that FICN were seized at the spot and pullanda was also prepared at the spot. He could not remember at what time he came back to the office but stated that it took 45 minutes to reach at office. He stated that he came back from the same route and AIIMS did not fall on the way and no construction work was going on at Barapulla Road. He stated that public persons were standing at the place of apprehension. He stated that he recorded the statements of the witnesses after coming back. He admitted that no mobile phone was recovered from Razia. He did not remember the date when SIM of mobile phone were recovered from the house of Razia.
27. PW6 SI Pawan Singh on 31.08.2013 had accompanied SI Amrik Singh and Ct Sunil to Village Chilkana, Dist. Sharanpur, UP on 31.08.2013 where Mohd. Ikram, husband of Raiza on interrogation handed over two SIM cards of Vodafone company having no. 9627971018 and 8650223050 which the IO kept in a match box and converted the same into a pullanda and taken into possession vide memo Ex.PW6/A. PW6 identified both the SIMs on being produced by MHCM in the Court and got exhibited both the SIMs as Ex.PW6/1 and Ex.PW6/2 respectively. PW6 was not subjected to any cross- examination on behalf of all the accused persons through their counsel.
28. PW7 D.R. Handa had examined the seized FICN and gave his reports dated 04.09.2013 Ex.PW7/A and 09.9.2013 Ex.PW7/B. In his examination in chief, he deposed that he joined CFSL in 1982 and is now working as Senior Scientific Officer. He stated that during his tenure of 32 years, he has examined around two lakhs of exhibit in more than 2000 cases. He deposed that he is M.Sc. and has written State vs. Mohd. Kamil & Ors.
FIR No. 28/2013, PS: Special Cell 15/54 thesis on documents investigation and detection of forgery. He stated that he had written two dozen research publications out of which six publications relate to FICN. He deposed that he had given training to around 10,000 trainees from various fields like Judiciary, Police, Vigilance and M.Sc. Students of Forensic Science of various Universities of India and received training of US Experts on Travel Documents. He stated that he also received training from NICFS, Govt. of India, Ministry of Home Affairs. He further stated that the case property was referred by SHO, Special Cell Lodhi Road vide memo nos. 6503/ACP/NDR dated 09.07.2013 and memo no. 7149/ACP/NDR dated 31.07.2013 through which CFSL received currency notes of various denominations. He stated that these currency notes along with forwarding letter were sent to undersigned through Director CFSL, New Delhi for its examination and examined these currency notes which were in denominations of thousand rupees and five hundred rupees with various scientific aids like Video Spectral comparator, Twin Video Comparator and Magnifying Glass and submitted his reports no. (1) CFSL-2013/D780 dated 04.09.2013 which contained three pages Ex.PW7/A bearing his signatures at point A and it was forwarded through Director with his forwarding letter dated 07.09.2013. He stated that the gist of the report is that all the currency notes bearing one thousand denomination (300 in number) and five hundred denomination (200 in number) were fake Indian currency notes. He deposed that he identified the signature of his Director at point B which I had seen him executing in his official capacity. He further stated that the other report bearing CFSL-2013/D-973 dated 09.09.2013 Ex.PW7/B was submitted by him which contained three pages bearing his signatures at point A. He stated that in this report, he had examined the currency notes of State vs. Mohd. Kamil & Ors.
FIR No. 28/2013, PS: Special Cell 16/54 Rupees thousand denomination (100 in number) and found that all the notes were fake Indian currency notes. He stated that his report was forwarded by Director CFSL through his forwarding letter dated 09.09.2013 bearing his signatures at point B.
29. PW7 in further examination in chief deposed that all the exhibits which were received in CFSL were in sealed condition and seals were opened in his office that is document division by the dealing hand who was assigned to check and received the document in Document Division, CFSL. He deposed that the parcels were sealed with the seal of SR in case CFSL 2013/D-780 and in case CFSL no. 2013/D-973 the parcels were sealed with the seal of AS and all the exhibits were examined in original with various scientific aids.
30. In cross-examination on behalf of Razia, Mohd. Kamil and Anwar Ali, PW7 deposed that the sealed pullanda was opened by the designated assistant in Document Division of CFSL and the articles were assigned to him for examination officially by the office of Director CFSL. He deposed that the parcels they were already desealed when he went to examine the same. He volunteered that as per routine procedure, sealed parcels are desealed by the designated assistant who is assigned to do this job and the parcels in question were desealed by the assistant to enable him to examine them. He deposed that the parcel was desealed on the same day on which he examined it. He deposed that the desealing of the parcel did not take place in his presence. He did not remember the time at which he examined the contents of the parcels and whether it is prior to lunch or in the post lunch session. He did not remember the time it took him to examine the State vs. Mohd. Kamil & Ors.
FIR No. 28/2013, PS: Special Cell 17/54 articles but the time is written in his reports. He stated that he handed over the parcels to her assistant after examination who thereafter, returned the exhibits to the investigating officer. He deposed that he had two-three assistants but could not remember who dealt with this case.
31. PW7 in his further cross-examination deposed that he does not reseal the parcels after examination and preparation of report and the same was done by his assistant. He stated that his report was forwarded by him to the Director CFSL for transmission to the IO. He could not remember whether the report was sent to the Director on the same day on which the parcels were handed over by him to his assistant. He did not know where his assistant kept the resealed parcels. He denied the suggestion that during this process the integrity and sanctity of the sealed parcels were lost. This cross-examination had been adopted by counsel for the accused Mohd. Maqsood.
32. HC Gynander was examined as PW8. In examination in chief, he deposed that on the direction of the IO, on 31.07.2013 he had collected one sealed parcel from MHCM PS Special Cell and took the same vide RC No.141/21/13 to CFSL, CGO Complex along with FSL form and deposited the same there. He deposed that till the exhibits in his custody, the same were intact and no one has tampered the same. In his cross-examination on behalf of the accused Razia, Mohd. Kamil and Anwar Ali, he deposed that he could not remember the time when he went to the police station for collecting the exhibits. He could not tell whether it was morning, noon or evening. He deposed that he made departure and arrival entry in the DD register but could not remember State vs. Mohd. Kamil & Ors.
FIR No. 28/2013, PS: Special Cell 18/54 the number of DD. He could not remember the name of MHCM. He did not remember the time when he reached CFSL nor could tell whether it was morning, noon or evening. He stated that he handed over the exhibits to the In-charge of receiving Section but could not remember his name. He deposed that the parcel was sealed with the seal of AS but he did not read the particulars which written on the parcel. He denied the suggestion that parcel was not given to him in sealed condition or that case property was tampered during his custody. This cross-examination had been adopted by counsel for the accused Mohd. Maqsood.
33. PW8 HC Gynander was also part of the investigation on 10.12.2013 regarding apprehension of accused Maqsood. In this regard, he in his examination in chief deposed that on 10.12.2013, he along with police team consisting of Insp. Subhash Vats, SI Vinod Kumar and HC Raj Kumar had gone to the residence of the accused Maqsood at village Bankarpur, Distt. Munger, Bihar for execution of process under Section 83 Cr.P.C. and arrested the accused Maqsood vide arrest memo Ex.PW8/X and personally searched vide memo Ex.PW8/Y. He stated that the accused was produced before the Local Court and thereafter he was brought to Delhi. In cross-examination on behalf of the accused Mohd. Maqsood, PW8 deposed hat he did not remember the time when they reached at the house of the accused Maqsood. He stated that perhaps it was noon time. He stated that the perhaps 4-5 police officials from local police had accompanied them. He did not remember the name of police station under which the village Bakarpur falls.
FIR No. 28/2013, PS: Special Cell 19/54
34. PW9 HC Ashok Kumar was part of the police team which apprehended Mohd. Kamil and Anwar Ali on 24.06.2013. In addition, PW9 had witnessed the proceedings at CFSL, CBI on 17.12.2013 when voice samples of Maqsood were recorded by Sunil Kumar (PW25) and Ravinder Kumar (PW26), Lab. Assistants. He deposed that voice sample of Maqsood was recorded on a memory card make SANDISK which was put in a parcel sealed with the seal of AS and seized vide memo Ex.PW9/B.
35. PW9 HC Ashok Kumar was not subjected to any cross- examination on behalf of the accused Kamil and Anwar Ali. In cross- examination on behalf of the accused Maqsood, PW9 deposed that he could not remember the exact time when the voice sample was recorded but it was noon time. He did not remember the name of father of Maqsood but stated he was a resident of District Munger, Bihar. He could not recall name of his village. He could remember name of only Ravinder, one of Lab Assistants who was present. He did not know whether any permission was taken from any Court to record voice samples of Maqsood.
36. ASI M. Baxla, MCHM PS Special Cell examined as PW10. In his examination in chief, he deposed that on 25.06.2013, he deposited in the Malkhana two parcels sealed with seal of SR stated to be containing FICNs, copy of seizure memo and personal search item recovered from the accused Anwar Ali along with another parcel sealed with the seal of AS along with personal search memo and seizure memo of the accused Mohd. Kamil. He also deposited the two mobile phone along with SIM card with copy of seizure memo. He further State vs. Mohd. Kamil & Ors.
FIR No. 28/2013, PS: Special Cell 20/54 deposed that on 09.07.2013, he handed over three pullandas, all sealed with the seal of SRs along with CFSL form to HC Surinder to deposit the same at CFSL, CBI, Lodhi Road through RC No. 125/21/2013. He was not subjected to any cross-examination by counsel for the accused persons despite grant of opportunity.
37. HC Surinder examined as PW11. He deposed that on 09.07.2013, he received three parcels sealed with the seal of SR from PW10 vide RC No.125/21/2013 along with CFSL Form to deposit the same at CFSL, CBI, Lodhi Road, New Delhi and deposited the same there. He was not subjected to any cross-examination by counsel for the accused persons despite grant of opportunity.
38. PW12 Anuj Bhatia, Nodal Officer, Vodafone Mobile Services Ltd. produced the Customer Application Form (CAF) of mobile number 8006220558 which as per their record was issued in the name of Salman, s/o. Ikram, r/o. House No. 1709/15, Majhar Hassan-1, Nakur PS Thana Chilkana, Distt. Saharanpur vide Ex.PW12/A. He also produced the Call Detail Records (CDRs) of the said mobile number for the period from 01.03.2013 to 27.07.2013 vide Ex.PW12/D. PW12 had also produced the CAF of mobile number 9627971018 which as per their record was issued in the name of Ikram, s/o Sh. Hamida, House No. 1709/15, Bazar Sultanpur, Chilkana, Saharnpur vide Ex.PW12/B. He also produced the CDRs of the said mobile number for the period from 01.03.2013 to 27.07.2013 vide Ex.PW12/E. PW12 also produced the CAF of mobile number 8650223050 which as per their record was issued in the name of State vs. Mohd. Kamil & Ors.
FIR No. 28/2013, PS: Special Cell 21/54 Salman, s/o. Ikram, r/o. House No. 1709/15, Majhar Hassan-1, Nakur PS Thana Chilkana, Distt. Saharanpur vide Ex.PW12/C. He also produced the CDRs of the said mobile number for the period from 01.03.2013 to 27.07.2013 vide Ex.PW12/F. There is nothing material in the cross-examination of PW12.
39. PW13 Rajeev Ranjan, Nodal Officer, TATA Tele Services Ltd. produced the scanned copy of CAF of mobile number 7206476339 which as per their record was issued in the name of Surinder Kaur, w/o. Sh. Tirth Singh, r/o. H. No. 257, Village Post Office Sharif Garh, Shahbad, Kurushetra, Haryana vide Ex.PW13/A. He produced the CDRs of the said mobile number for the period from 24.03.2013 to 24.06.2013 vide Ex.PW13/B. PW13 was not subjected to any cross- examination despite grant of opportunity.
40. PW14 Amarnath Singh, Nodal Officer, Idea Cellular Ltd. produced the scanned copy of CAF of mobile number 8449423551 which as per their record was issued in the name of Tofique, s/o. Sh. Yakoob, r/o. H. No. 17, Nangla Raid, Mujjafarnagar vide Ex.PW14/A. He also produced the CDRs of the said mobile number for the period from 24.03.2013 to 24.06.2013 vide Ex.PW14/B. PW14 was not subjected to any cross-examination despite grant of opportunity.
41. PW15 Shishir Malhotra, Nodal Officer, Aircel Ltd. produced the CAF of mobile number 9852163130 which as per their record was issued in the name of Sh. Maqsood, s/o Sh. Maqsood, r/o. H. No. 118, Bakarapur Village, Anchal Munger Sadar, Distt. Munger, Bihar vide Ex. PW15/E. He also produced the CDRs of the said mobile number for the State vs. Mohd. Kamil & Ors.
FIR No. 28/2013, PS: Special Cell 22/54 period from 01.03.2013 to 02.09.2013 vide Ex.PW15/B. He stated that as per their record, interception orders dated 11.07.2013 and 08.10.2013 of DCP Special Cell, New Delhi of said mobile number was also received in their office. There is nothing material in the cross- examination of PW15.
42. PW16 R.K. Singh, Nodal Officer, Bharti Airtel Ltd. produced the CAF of mobile number 8521720955 which as per their record was issued in the name of Sh. Maqsood, s/o Sh. Maqsood, r/o. H. No. 118, Bakarapur Village, Anchal Munger Sadar, Distt. Munger, Bihar vide Ex. PW16/A. He also produced the CDRs of the said mobile number for the period from 24.03.2013 to 24.06.2013 vide Ex.PW16/B. There is nothing material in the cross-examination of PW16.
43. PW17 SI Satish Rana was leading the police team which apprehended the accused persons Kamil and Maqsood on 24.6.3013. He has deposed about the events of 24.6.2013 in his examination in chief in the manner as recorded above. PW17 in cross-examination on behalf of the accused Kamil and Maqsood stated that he had left the office of Special Cell and took route of Lodhi Road via Barapulla and Sarai Kale Khan. He did not remember registration number of private motorcycle used by HC Raj Kumar. He stated that he was sitting alone in his office when the secret information was received by him. He stated that the secret informer did not give any information that Maqsood would be supplying FICN. He stated that the distance from his office to Kashmiri Gate was about 12-13 Kms. He had noticed Kamil for the first time when he was going towards opposite side of the road leading to Shahdara. He stated that when Kamil crossing the road, he saw a lot of State vs. Mohd. Kamil & Ors.
FIR No. 28/2013, PS: Special Cell 23/54 crowd at and nearby the place. He stated that Kamil was standing on the pavement after crossing the road and both Kamil and Anwar Ali were apprehended simultaneously by the team. He stated that some people had gathered around when the accused was apprehended by the police team and he had requested the public to join the investigation. He stated that currency notes recovered from Kamil were kept in two boxes.
44. The following specific question was put to PW17 to which he gave the following answer:-
"Q. Is it correct that at the time of arrest of accused Anwar the money recovered from him was Rs. 50,000/- (100 notes in the wads of Rs. 500/-), however, at the time of examination today before the Court the same box which is marked A at the time of arrest of accused Anwar has Rs. 1,50,000/- in it (100 notes of Rs. 500/- along with 100 notes of Rs. 1000/-) along with two mobile phones in the same box which is marked as Mark A. Ans. Yes. (vol.) the said box when exhibited in Court today was in opened condition and all the notes were having the seal of CFSL, CBI."
45. PW17 in his further cross-examination admitted that there was no seal of FSL on all the boxes produced in the Court but clarified that CFSL number was mentioned on the boxes. He stated that he prepared the refusal memo / fard inkari, seizure memos, FSL form and rukka at the spot between 7pm to 10pm and thereafter he sent HC Surinder and HC Ashok to the office of PS Special Cell, Lodhi Road. He stated that SI Amrik Singh with HC Ashok thereafter came to place of apprehension. He admitted that the log book of every government vehicle is maintained at the time of entry and exit from the office of Special Cell. He stated that the government vehicles were used on State vs. Mohd. Kamil & Ors.
FIR No. 28/2013, PS: Special Cell 24/54 24.06.2013 when Kamil and Anwar Ali were apprehended. He admitted that in the log book, the timing was not mentioned. He was not aware whose motorcycle had been used by HC Raj Kumar and HC Umesh. He stated that the police team had got down from the vehicle at Sarai Kale Khan and he had made request to public persons to join the raiding party. He further stated that motorcycle had also stopped there and he was the only person who got down from the vehicle to make the request.
46. PW17 further stated that Insp. Vats had shared the information with ACP and secret informer left the spot after pointing out Kamil. He stated that search of Kamil was done by him and the articles seized were mentioned in his personal search memo. He could not remember the descriptions of those articles. The same was his answer regarding Anwar Ali. He stated that no mobile instrument was recovered from Anwar Ali. He stated that the secret informer had not given any information about quantity of FICN and he only disclosed that huge quantity of FICN in denomination of Rs.1000/- would be brought. He stated that the first document which he prepared after the apprehension of Kamil was the refusal memo / fard inkari at 7:15pm and thereafter, he prepared the seizure memo but he did not remember the time of its preparation. He thereafter prepared the FSL Form and rukka. He stated that written work was done while sitting inside the vehicle and continued till 10pm when he sent the rukka. He stated that further investigation was taken up by SI Amrik Singh who had prepared the site plan in his presence at the spot and thereafter they had taken back to the office where further proceedings were conducted. He stated that the police team had left the spot at about 1am and when they had reached the State vs. Mohd. Kamil & Ors.
FIR No. 28/2013, PS: Special Cell 25/54 office of Special Cell, the date was 25.06.2013. He could not remember the time of preparation of site plan by SI Amrik Singh. He stated that personal search at the time of SI Amrik Singh was conducted in the office of Special Cell. He stated that his statement was recorded between 6am to 7am in the morning of 25.06.2013. He stated that he came to know about deposit of the case property with MHCM by SI Amrik Singh. He had handed over the case property to SI Amrik Singh at the spot. Rest of the cross-examination of PW17 was in the form of suggestions which he denied.
47. Kapil Dev, Senior Station Incharge, Naya Roadways Bus Depot, Katgarh, Muradabad, U.P. was examined as PW18. He deposed that ticket number 4620523 of bus bearing no. UP-21-AN-2047 had been issued by the said Roadways and that he had verified the same from the records of the office. He provided his report in the regard as Ex.PW18/A which he had given to the IO in response to notice under Section 91 of the Cr.P.C. In cross-examination on behalf of the accused Razia, he admitted that the said ticket Ex.PW4/F did not bear the name of any passenger and that hundreds of tickets were sold at the counter. He could not remember the face of the person who purchased the said ticket.
48. Manish Raj, Branch Manager, SBI, Bardah, Munger, Bihar was examined as PW19. He produced the statement of accounts of bank account no. 32133791844 for the period from 01.01.2013 to 31.12.2013 which as per records was in the name of Mohd. Maqsood. He produced the certified copy of statement of account Ex.PW19/A in respect of said bank account. In cross-examination on behalf of State vs. Mohd. Kamil & Ors.
FIR No. 28/2013, PS: Special Cell 26/54 accused Mohd. Maqsood, he deposed that he had only produced the documents summoned by the Court and had no personal knowledge of the case.
49. M.P. Khurana, Branch Manager, State Bank of India (SBI) Chilkana, Sultanpur Branch, Saharanpur was examined as PW20. He produced ten deposits slips Ex.PW20/A (colly.) through which money was deposited in the Chilkana Branch of SBI in bank account in bank account no. 32133791844. In cross-examination on behalf of Mohd. Maqsood, he admitted that cash could be deposited through said deposit slips at cash counter by any person in any account. He was not aware about the purpose for which the money was deposited. He stated that he had only produced the documents summoned by the Court and had no personal knowledge of the case. He was not aware as to who filled the said deposit slips. He further stated that these deposit slips were for less than Rs.25,000/- and insistence of PAN Card was made when the deposit in cash was for Rs.50,000/- or above.
50. PW21 ASI Satender proved the interception orders dated 08.10.2013 and 11.07.2013 as Ex.PW21/A and Ex.PW21/B respectively. He was not cross-examined despite grant of opportunity.
51. PW22 is Pankaj Kumar who is the proprietor of M/s Sanchar Point at Purab Sarai, Munger, Bihar from which he selling SIM Cards of different mobile companies. He deposed that the CAF of mobile number 9852163130 had been filled by one Maqsood for issuance of SIM Card along with proof of identity. He deposed that he he himself had signed on the CAF and put stamp of his shop at points State vs. Mohd. Kamil & Ors.
FIR No. 28/2013, PS: Special Cell 27/54 A, B and C. He however could not identify as to whether the customer named Maqsood was the same person, who was present in the Court due to lapse of time. At that stage, Ld. Addl. PP for the State sought and was granted permission to cross-examine witness on the identity of the accused Mohd. Maqsood. Attention of the witness was drawn towards accused Mohd. Maqsood who was standing the Court but even after looking at him, witness was unable to identify the accused Mohd. Maqsood as the same person who had filled up the said CAF. He was not subjected to any cross-examination despite grant of opportunity.
52. PW23 SI Vinod Kumar and PW24 Ct Himanshu are the police officials who had gone to Village Bakkarpur, Dist. Munger Bihar for execution of process under Sections 82 / 83 of the Cr.P.C. qua Mohd. Maqsood and Tajuddin @ Danish. On 11.12.2013 when they reached the house of the accused to execute the said process, they found him in his house and he was arrested by them. Accused Mohd. Maqsood was produced before the concerned Chief Judicial Magistrate and brought to Delhi after being granted transit bail. There is no material in the cross-examination of PW23 and PW24 regarding apprehension of accused Mohd. Maqsood.
53. In addition PW23 SI Vinod Kumar had been assigned to listen to the conversations of intercepted mobile number 9852163130 between 14.07.2013 to 28.07.2013. PW23 wrote down transcripts of the said conversations Ex.PW23/A and handed over the same to the IO PW5. PW23 also handed over two Compact Disks (CDs) containing intercepted conversations of the said mobile number for the said period and handed over the same to the IO who seized the same vide memo State vs. Mohd. Kamil & Ors.
FIR No. 28/2013, PS: Special Cell 28/54 Ex.PW23/B.
54. PW25 Sunil Kumar and PW26 Ravinder Kumar both Laboratory Assistants in CFSL CBI have deposed in their examination in chief that the accused Maqsood Alam had been brought to their office on 17.12.2013 by PW5 SI Amrik Singh. They have deposed that the accused voluntarily agreed to give his voice sample which was recorded on a memory card 'SAN DISK'. The accused was illiterate and transcripts were read over to him which he thereafter repeated in his own voice which was recorded in the said memory card. The memory card was sealed with the seal of AS and seized vide memo Ex.PW9/B bearing their signatures at points C and D. In cross- examination, both deposed that the voice sample of Maqsood obtained in Hindi and the transcripts which had been read over were also in Hindi. They could not remember the details of the transcripts but deposed that the duration was about ten minutes. They could not remember whether the IO had produced any Court order for recording voice sample of the accused. they denied the suggestion that the accused did not give any consent to record his voice sample.
55. PW27 is Amitosh Kumar, Senior Scientific Officer, CFSL CBI. He had compared the voice sample of the accused Maqsood Alam with his voice sample and by his report Ex.PW27/A found that the voice sample matched with the intercepted conversations. In cross- examination on behalf of the accused Maqsood, he denied the suggestion that he did not carry out any proper analysis or that he had given a false report.
FIR No. 28/2013, PS: Special Cell 29/54 EVIDENCE OF DEFENCE WITNESSES
56. DW1 Mohd. Imitiaz, son-in-law of the accused Mohd. Maqsood in examination in chief deposed that he knew the accused Maqsood since childhood and that on 15.08.2013, he got married to the elder daughter of Maqsood who was therefore his father-in-law. He placed on record Marriage Card Ex.DW1/A. He deposed that Maqsood Alam was involved in the business of stone quarrying for about 8-10 years but his business was closed down since 2012. He deposed that Maqsood told him that he had a friend Ikram, residing in UP and that money spent by Maqsood in marriage of his daughter was given to him by said Ikram who had deposited the money in the bank account of Maqsood. In cross-examination by Ld. Addl. PP, he has stated that counsel for the accused Maqsood had asked him to appear in the Court as a witness. He himself did not personally knew Ikram. He never met Ikram and did not know anything about profession of Ikram. He deposed that Maqsood only referred the name of Ikram occasionally. He did not know in which bank Maqsood had his account.
57. DW2 is Shahnawaz, younger brother of accused Kamil. He in his examination in chief deposed that he was engaged in the business of sale and purchase of blankets with his brother Kamil for the past nine years. He submitted that his brother Kamil was arrested from their house at Distt. Shamli, U.P. in June, 2013 by 4-5 police officials who were not in uniform. He stated that they were told that Kamil was taking for questioning but after eight days information was given that he was taken to Delhi. In cross-examination on behalf of Ld. Addl. PP, DW2 stated that he had not informed the local police station near his State vs. Mohd. Kamil & Ors.
FIR No. 28/2013, PS: Special Cell 30/54 residence regarding apprehension of his brother Kamil. He did not inform any higher authority that his brother had been taken away by police officials. He deposed that no complaint had been made by him in this regard to any person or authority. Voluntarily he stated that he had disclosed, this fact to his advocate. He could not remember the date on which his brother was apprehended by the police but stated that it was in the month of June. He admitted that his brother Kamil had been arrested in a criminal case pertaining to possession of illegal arms at Panipat but deposed that he had been acquitted. He also admitted that Kamil had been earlier arrested in another case relating to possession of FICN at Shahranpur / Muzaffarnagar but he did not know about the fate of that case.
58. DW3 is Salman, son of Ikram and accused Razia. He deposed that he was running a mobile repairing shop and also runs Committee (Chit Fund). He deposed that he knew the accused Maqsood who was the friend of his father. He stated that he used to deposit money in the bank account of Maqsood at the instance of one "Ikram". He stated that his father (i.e. father of DW3) had given him some money for opening of his said mobile repair shop and he came to know from his father that the money had been borrowed from Ikram who had borrowed money from Maqsood. In cross-examination on behalf of Ld. Addl. PP, DW3 stated that he did not know the profession of Maqsood but his father told him that he was involved in stone work. He had met Maqsood only once. He stated that he did not have any PAN card and was not assessed to Income tax or Sales tax and his business was not registered before any authority. He did not have any license of running any business of committee. He did not know address State vs. Mohd. Kamil & Ors.
FIR No. 28/2013, PS: Special Cell 31/54 of Maqsood but knew that he belongs to Munger and that his bank account in SBI in Munger. He did not know place of the branch or the bank account number. He stated that he used to be issued deposit slips by SBI, Chilkana which he had not brought with him. He did not have deposit slips with him in his house. He had deposited the money in the account of Maqsood eight times amounting to Rs.25,000/- and Rs.24,000/-. He could not remember how much he deposited in other occasions. He admitted that he was called to the Court by counsel for the accused Maqsood to testify in the Court.
59. DW4 is Ikram, husband of accused Razia and father of DW3 Salman. In his examination in chief, he deposed that he knew Maqsood and had taken a loan from Maqsood to finance shop of his son Salman. He invested the some of the amount in the shp and some amount in his own work. His son invested some of the amount in the committee and lateron, he repaid the loan to Maqsood in the installments of Rs.25,000/- each. In cross-examination on behalf of the Ld. Addl. PP, DW4 deposed that he had been called by counsel for the accused Maqsood to testify in the Court. He was having an account in SBI Chilkana but did not know branch of Bank in which Maqsood had an account but deposed that it was somewhere in Munger. He did not know account number of Maqsood. He did not have deposit slip regarding monies deposited in the account of Maqsood. He did not have any documentary evidence of loan given by Maqsood or repayment of loan by him to Maqsood. He deposed that there was no loan agreement between them. He deposed that Maqsood had not taken any security from him when he advanced loan. He admitted that there was another person by the name of Ikram residing in the same State vs. Mohd. Kamil & Ors.
FIR No. 28/2013, PS: Special Cell 32/54 locality where he was residing.
60. DW5 is Nasima, neighbour of the accused Razia. In her examination in chief, DW5 deposed that at about 11am on one day, she saw three ladies and 3-4 males coming out of vehicle going inside house of Razia and taking her along with them. In cross-examination on behalf of Ld. Addl. PP, she admitted that she had been called by counsel for the accused to depose in the Court. She could not remember the date, month or year when Razia was taken away by the said persons. She deposed that it was in the month of Ramzan about two years back and none of these persons were wearing any uniform. She did not know the accused Razia but deposed that she used to reside in her neighbourhood. She deposed that she had gone to local police station with 10-15 persons to inquire about Razia but no complaint in this regard was taken by the police officials.
ARGUMENTS ADDRESSED
61. The Ld. Addl. PP for the State has argued that several recovery witnesses were not subjected to any cross-examination on behalf of the accused persons and that the other witnesses who were cross examined remained consistent with their version. He submitted that the amounts deposited in cash in the bank account of Maqsood on behalf of Razia stood proved. These deposits have not been explained by the accused persons. He submitted that the witnesses examined in defence to explain these deposits were unreliable, their version being full of contradictions. He submitted that the intercepted conversations of accused Maqsood from his mobile number 9852163130 with Razia State vs. Mohd. Kamil & Ors.
FIR No. 28/2013, PS: Special Cell 33/54 were incriminatory in nature and there was reference to trafficking of FICN. He thus submitted that the case of the prosecution qua the accused persons stood proved beyond reasonable doubt.
62. Sh. Krishna Kant, counsel for accused Razia and Amicus Curaie for accused Anwar Ali argued that there were contradictions in the versions of the recovery witnesses pertaining to these two accused. He submitted that no member of the public was associated with the recovery proceedings and in their absence, version of police witnesses could not be relied upon. He submitted that the recovered FICN when produced before the Court was found to be in unsealed condition and the sanctity of the case property stood violated. He further submitted that no voice sample of accused Razia was obtained by the IO and thus the intercepted conversations between the accused Maqsood and Razia could not be read in evidence. He submitted that the witnesses examined in defence on behalf of Razia revealed that she was not apprehended from Anand Vihar, ISBT and the deposits of cash in the bank account of Maqsood had been satisfactorily explained.
63. Sh.Hamid Khan, counsel for the accused Maqsood and Amicus Curaie for accused Mohd.Kamil made similar arguments. In addition, he argued that there was no certificate under Section 65-B of Indian Evidence Act in support of the two CDs containing the intercepted calls between accused Mohd. Maqsood and Razia. In the absence of the same, the contents of these two CDs could not be relied upon to prove that the voice in the intercepted calls belonged to Maqsood. No mobile phone instrument was recovered from Maqsood. He submitted that no permission of the Court had been taken to obtain State vs. Mohd. Kamil & Ors.
FIR No. 28/2013, PS: Special Cell 34/54 the voice sample of Maqsood and therefore the evidence of the report of Forensic Sciences Laboratory regarding identification of voice of accused Maqsood could not be looked into. He further submitted that the deposits of cash in the bank account of Maqsood were explained by defence witnesses. He lastly submitted that in view of the contradictions in the testimonies of recovery witnesses, recovery of FICN from the accused Mohd. Kamil could not be relied upon, especially in the absence of any public witness being associated with the same. In addition to oral arguments, counsel for the accused has filed written arguments which are in the form of a chart regarding the contradictions in the versions of prosecution witnesses.
PROCEEDINGS DATED 10.7.2015
64. It may be pertinent to note at this stage that after arguments had been addressed by Ld. Counsel for the parties, the matter was fixed for clarifications on 10.07.2015. This Court brought to the notice of the counsel for the accused persons as well as their Amicus Curaie that certain prosecution witnesses had not been subjected to any cross-examination at all. Counsel for the accused stated that they did not wish to move any application for permission to cross-examine such witnesses.
65. I have heard counsel for the parties and have perused the record of this case. My findings are as under:-
QUA ANWAR ALI AND KAMIL
66. The case of the prosecution has already been referred above. The witnesses relevant to the apprehension of Anwar Ali and State vs. Mohd. Kamil & Ors.
FIR No. 28/2013, PS: Special Cell 35/54 Kamil are PW3, PW9 and PW17 who were part of the police team which apprehended them. PW3 HC Ram Gopal has deposed elaborately about the proceedings of the police team regarding apprehension of Mohd. Kamil and Anwar Ali on 24.06.2013 and the recoveries of FICN from them. He identified the case property in Court and the FICN recovered from each of the accused. He was not subjected to any cross-examination on behalf of Mohd. Kamil as well as Anwar Ali. PW9 HC Ashok Kumar also deposed in detail about the proceedings of the police team on 24.06.2013. He too was not subjected to any cross-examination on behalf of Mohd. Kamil and Anwar Ali.
67. This leaves us with the version of PW17 SI Satish Rana. His cross-examination has already been referred to in the preceding paras of this judgment. The Ld. Counsel for Mohd. Kamil and Anwar Ali had given a tabulated chart by which contradictions in the versions of PW3, PW9 and PW17 were sought to be stressed. These contradictions are sought to be raised from the examination in chief of PW3 and PW9 with the deposition of PW17 in cross-examination. The examination in chief of all these three witnesses are consistent with the version of the prosecution. There is no cross-examination of PW3 and PW9. The cross-examination of PW17 does not contain any such contradiction which can lead to any doubt on the version of the prosecution. The versions of PW3 and PW9 remained untested despite the same being brought to the knowledge of accused persons. Their examination in chief will therefore be read in evidence in the manner as deposed in Court. The versions of PW3 and PW9 having not been subjected to any challenge cannot be discredited merely on the basis of State vs. Mohd. Kamil & Ors.
FIR No. 28/2013, PS: Special Cell 36/54 testimony of PW17 in cross-examination.
68. Submission was made that the evidence of PW3, PW9 and PW17 be discarded in the absence of any public witness being associated with the recoveries of FICN effected from Mohd. Kamil and Anwar Ali. It is settled law that the evidence of police witnesses cannot be discarded altogether on the sole ground that public witnesses are not associated with the proceedings of the police officials. In these circumstances, the versions of the police witnesses are to be put to greater care and scrutiny. In respect of this issue, the Hon'ble Supreme Court in the case of Gian Chand v. State of Haryana reported in (2013) 14 SCC 420 the Hon'ble Supreme Court was pleased to refer to the law on the said question and hold as under:-
"The wise principle of presumption, which is also recognised by the legislature, is that judicial and official acts are regularly performed. Hence, when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe that version to be correct if it is not otherwise shown to be unreliable. The burden is on the accused, through cross-examination of witnesses or through other materials, to show that the evidence of the police officer is unreliable. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume that police action is unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions."
69. It was further observed by the Hon'ble Supreme Court in State vs. Mohd. Kamil & Ors.
FIR No. 28/2013, PS: Special Cell 37/54 the case of Gian Chand v. State of Haryana that:-
"37. Section 114 of the 1872 Act gives rise to the presumption that every official act done by the police was regularly performed and such presumption requires rebuttal. The legal maxim omnia praesumuntur rite it dowee probetur in contrarium solemniter esse acta i.e. all the acts are presumed to have been done rightly and regularly, applies. When acts are of official nature and went through the process of scrutiny by official persons, a presumption arises that the said acts have regularly been performed."
70. In the case of Gian Chand v. State of Haryana (supra) the Hon'ble Supreme Court was pleased to hold that not joining a public witness by the police would not be fatal to the case set up regarding recoveries from the accused. It was held that the presumption prescribed under section 114 of the Evidence Act regarding official acts having been performed regularly is attracted to the acts of the police. Such presumption was rebuttable and the onus to rebut the same would be on the accused. The ratio laid down by the Hon'ble Supreme Court applies squarely to the present case. A presumption arises in respect of the recovery proceedings of the police team qua the accused Mohd. Kamil and Anwar Ali which was to be rebutted by them either by cross examining the relevant witnesses or from any other material. In the present case there is no cross-examination of PW3 and PW9. Thus the submission of the counsel for the accused regarding absence of any public witnesses in the recovery proceedings against accused Mohd. Kamil and Anwar Ali has no merit.
71. Submission was made on behalf of Mohd. Kamil and Anwar Ali that the case property i.e. FICN recovered from them when State vs. Mohd. Kamil & Ors.
FIR No. 28/2013, PS: Special Cell 38/54 produced in Court were found to be in unsealed condition and thus the Court would have to draw an inference that its sanctity had been lost. In this regard it is to be seen that the case property i.e. FICN recovered from Mohd. Kamil and Anwar Ali was first produced before the Court for the first time at the time of examination in chief of PW3 HC Ram Gopal which was recorded on 15.01.2014. The relevant portion of the same is as under:-
"At this stage, three boxes marked as K1, K2 and A are produced. The plastic box mark K1 is containing the envelops G1 and G2. The parcel marked K2 is containing the envelopes mark G3 and G4. Envelop mark G1 is found contained one bed of 100 notes of denomination of 1000 each. Similarly, envelope mark G2 and G3 were found containing one bed each of 100 notes of denomination of 1000. The envelope marked G4 is containing a bed of 100 notes of denomination 500. witness identify these notes were recovered form accused Kamil were seized vide memo Ex.PW3/B (the number of each currency notes is mentioned in the seizure memo Ex.PW3/B). The beds of currency notes containing 100 notes each are Ex.P1, P2, P3 and P4. At this stage, the plastic box mark A was opened. It was found containing two envelopes,one marked G5 and another unmarked. From envelope G5 one bed of 100 currency notes of denomination 500 is taken out. The number of currency notes are mentioned in Ex.PW3/A. Witness identified this bed of 100 notes recovered form accused Anwar and are Ex.P5. At this stage, MHCM also produced one bag containing cloths, one green colour bag, one charge and other daily use items. Witness identify the bag and the other items as the same which were recovered from accused Mohd. Kamil and same are collectively Ex.P6. At this stage, MHCM has produced two mobiles phones make Nokia C-2 and C-5. The witness identify the same and same are Ex. PX1 and PX2."
72. The examination in chief of PW3 was recorded by the Ld. State vs. Mohd. Kamil & Ors.
FIR No. 28/2013, PS: Special Cell 39/54 Predecessor of this Court. As per the version of the prosecution, the FICN recovered from accused Kamil had been put in four envelopes which were marked as G1 to G4; envelopes G1 and G2 were kept in a plastic box marked as K1 and envelopes G3 and G4 were kept in a plastic box marked as K2; the envelope containing the FICN recovered from Anwar Ali was marked as G5 and put in a plastic box marked as A. The examination in chief of PW3 reveals that the envelopes G1 to G5 were taken out from the plastic containers K1, K2 and A which corresponds to the version of the prosecution regarding the manner in which they had been kept in envelopes, put in plastic containers and then seized vide memos. PW3 identified in Court the FICN seized from Mohd. Kamil and Anwar Ali. The wads of currency notes recovered from Kamil were identified and exhibited as Ex.P1 to Ex.P4 and those recovered from Anwar Ali as Ex.P5.
73. The examination in chief of PW3 does not record any fact to the effect that the FICN when produced before the Court were in unsealed condition. As per PW3, the plastic boxes K1, K2 and A were sealed with the seal of "SR". PW7 D.R. Handa, Senior Scientific Officer who examined the seized FICN in his examination in chief has deposed that the parcels received vide case CFSL-2013/D-780 were bearing the seals "SR". In cross-examination, he deposed that the seals had been removed by the designated Assistant in the Document Division of CFSL. The parcels had been desealed on the same day on which he examined them. After examination, the parcels were resealed but the desealing and the resealing of the articles were not effected in his presence. Even if the desealing and resealing of the articles did not take place in the presence of PW7, he has deposed that when the State vs. Mohd. Kamil & Ors.
FIR No. 28/2013, PS: Special Cell 40/54 articles were received they were in sealed condition.
74. The case property i.e. FICN recovered from Mohd. Kamil and Anwar Ali was produced before the Court for a second time on 21.02.2015 at the time of examination in chief of PW17 SI Satish Rana. The relevant portion of his examination in chief recorded on 21.02.2015 is as under:-
"I can identify the case property, if shown to me. At this stage, three boxes marked as K1, K2 and A are produced by the MHCM.
The plastic box mark K1 unsealed is containing the envelops G1 and G2 and two wads of FICN in denomination of Rs. 1000/- each, having seal of CFSL, CBI, ND case no. 13/D-780 documents division on each note. The FICN already Ex. P-1 and P-2 collectively. The said FICN were recovered from the accused Kamil. The plastic box mark K2 unsealed is containing the envelops G3 and G4 and two wads of FICN in denomination of Rs. 1000/- and Rs. 500/-, having seal of CFSL, CBI, ND case no. 13/D-780 documents division on each note. The FICN already Ex. P-3 and P-4 collectively. The said FICN were recovered from the accused Kamil. The plastic box mark A unsealed is containing the envelops G5 and one wad of FICN in denomination of Rs. 500/- each, having seal of CFSL, CBI, ND case no. 13/D- 780 documents division on each note. The FICN already Ex. P-5 collectively. The said FICN were recovered from the accused Anwar."
75. It is apparent from the examination in chief of PW17 that the plastic containers K1, K2 and A when produced before the Court for a second time were observed to be in unsealed condition. There is however no such observation of the Ld. Predecessor of this Court when these very containers were produced for the first time before the Court on 15.01.2014 at the time of examination in chief of PW3. The State vs. Mohd. Kamil & Ors.
FIR No. 28/2013, PS: Special Cell 41/54 envelopes G1 to G5 were found in their respective plastic containers K1, K2 and A when produced on 15.01.2014. In the absence of any observation made by the Ld. Predecessor of this Court, it cannot be presumed by this Court that the plastic containers K1, K2 and A were in found to be in unsealed condition even on 15.01.2014.
76. It is also to be seen that at the time of recording of examination in chief of PW3, the Ld. Predecessor of this Court found it fit to observe that the serial numbers of the FICN taken out from the said plastic containers corresponded to the serial numbers of the FICN entered into the respective seizure memos. When the FICN were produced before this Court at the time of examination in chief of PW17, it was found that there was a seal of CFSL CBI ND Case No.13/D-780 on each currency note. As per evidence of PW7, the currency notes recovered from Mohd. Kamil and Anwar Ali were examined vide case CFSL 2013/D-780. Therefore what falls from the above is that the serial numbers of FICN seized from Mohd. Kamil and Anwar Ali were entered in their respective seizure memos. The same were examined by PW7 vide case CFSL 2013/D-780 and each currency note found in the boxes K1, K2 and A were stamped with the seal of CFSL CBI ND Case No.13/D-780. When the same were produced before the Court for the first time on 15.01.2014, the serial numbers of the FICN were compared with the contents of their respective seizure memos and found to be corresponding with the same. Each of the currency notes had the stamp of CFSL CBI. Thus it can be safely concluded that the FICN recovered from Anwar Ali and Kamil were reflected in the respective seizure memos. These were the very notes examined by PW7 with each note being individually stamped with the seal of CFSL. When these notes State vs. Mohd. Kamil & Ors.
FIR No. 28/2013, PS: Special Cell 42/54 were produced and exhibited in Court on 15.1.2014, the same were cross-checked with the contents of their respective seizure memos and found to be correct. Thus the question of any manipulation of the case property from the time it was seized to the time it was examined by CFSL and then produced before the Court does not arise.
77. For the reasons recorded above, it stands proved that on 24.06.2013, Mohd. Kamil and Anwar Ali were found in possession of FICN amounting to Rs.3,50,000/- and Rs.50,000/- respectively and that the FICN recovered from Anwar Ali had been handed over to him by Mohd. Kamil.
78. Section 489B of the IPC makes it punishable to sell to, or buy or receive from, any other person, or otherwise traffic in or use as genuine, any forged or counterfeit currency-note or bank-note, knowing or having reason to believe the same to be forged or counterfeit.
79. Section 489C of the IPC makes it punishable to keep in possession any forged or counterfeit currency-note or bank-note, knowing or having reason to believe the same to be forged or counterfeit and intending to use the same as genuine or that it may be used as genuine.
80. The quantity of FICN recovered from both the accused persons indicates that the same were meant for trafficking. Further, Mohd. Kamil had handed over FICN of Rs.50,000/- to Anwar Ali. Thus both are convicted for the offence under Section 489B of the IPC. Having been found to be in possession of FICN, both Mohd. Kamil and State vs. Mohd. Kamil & Ors.
FIR No. 28/2013, PS: Special Cell 43/54 Anwar Ali are stand convicted under Section 489C of the IPC.
81. Section 120B of the IPC makes punishable an act of a person who is a party to a criminal conspiracy to commit an offence. Section 120A IPC defines 'criminal conspiracy' to mean where two or more persons agree to do or cause to be done an illegal act. The fact that both Mohd. Kamil and Anwar Ali met at a pre-designated place where Mohd. Kamil handed over FICN of Rs.50,000/- to Anwar Ali gives rise to an inference that both were party to a criminal conspiracy for trafficking FICN. Both Mohd. Kamil and Anwar Ali are therefore convicted for the offence under Section 120B of the IPC.
QUA RAZIA AND MAQSOOD ALAM
82. Razia was apprehended on 28.07.2013 from ISBT Anand Vihar on the lead given by a secret informer. She was found to be in possession of FICN of Rs.1,00,000/-. Witnesses regarding recovery of FICN from Razia are WSI Nirmala PW4 and IO SI Amrik Singh PW5. PW4 in her examination in chief on 15.01.2014 has described in detail regarding the manner in which Razia was apprehended and recovery of FICN effected from her. PW4 was not subjected to any cross examination despite grant of opportunity. Her version has gone unrebutted and unchallenged. The other witness regarding the same is PW5 who has deposed as per the version of the prosecution in his examination in chief. He was subjected to cross-examination on behalf of Razia. Deposition of PW5 in cross examination has been referred to in the forgoing paras of this judgment. Counsel sought to discredit the deposition of PW5 but there is nothing substantial in his cross State vs. Mohd. Kamil & Ors.
FIR No. 28/2013, PS: Special Cell 44/54 examination to the benefit of Razia. The submission that no public witness was associated with the recoveries effected from Razia is taken care of by the ratio laid down in the judgment of the Hon'ble Supreme Court in the case of Gian Chand (supra) i.e. a presumption under section 114 of the Evidence Act is attached to official acts having been performed regularly, which is rebuttable but the onus to rebut the same would be on the accused. In the absence of any cross-examination of PW4 and any material contradictions in the version of PW5, the presumption regarding their version has not been rebutted by Razia. Hence the recovery from her on 28.07.2013 stands proved. This FICN examined by PW7 was found to be fake vide his report Ex.PW7/B. It is therefore proved that FICN to the tune of Rs.1,00,000/- was recovered from Razia.
83. Vide Ex.PW21/A and Ex.PW21/B mobile number 9852163130 was under interception of the Special Cell after being granted requisite authorization from the Home Secretary of the Government of India. PW15 Nodal Officer of M/s Aircel Ltd. produced the CAF of no. 9852163130 as per which the same was allotted to Maqsood of Bakarpur Village, Dist. Munger Bihar. The fact that this mobile number belonged to the accused Maqsood Alam was not disputed in the cross examination of PW15. PW15 also produced the CDR of this number Ex.PW15/B and the Cell ID Chart vide Ex.PW15/C.
84. The CDR Ex.PW15/B reveals several phone calls with the number 9627971018. PW5 and PW6 had gone to Village Chilkana, Dist. Shaharanpur UP on 31.08.2013 and questioned Ikram, husband of accused Razia. Ikram handed over SIM cards of M/s Vodafone of State vs. Mohd. Kamil & Ors.
FIR No. 28/2013, PS: Special Cell 45/54 numbers 9627971018 and 8650223050, Ex.PW6/1 and Ex.PW6/2. There is no cross examination of PW5 and PW6 regarding the same. PW12 Nodal Officer of M/s Vodafone produced the CAF of mobile number 9627971018 as per which the same had been issued to Ikram, at Chilkana, Shahranpur. Ikram is the husband of the accused Razia. It is not disputed in cross examination of PW12 that this mobile number belonged to Ikram.
85. It therefore stands proved that mobile no. 9852163130 was subscribed by accused Maqsood Alam whereas mobile no. 9627971018 had been subscribed by Ikram, husband of accused Razia. PW23 SI Vinod Kumar was deputed to listen to the intercepted conversations of mobile no. 9852163130. He prepared the transcripts of the said conversations vide Ex.PW23/A and downloaded the recorded conversations in two CDs which he handed over to the IO along with a certificate under section 65B of the Indian Evidence Act vide Ext.PW5/D. PW25 and PW26 recorded the voice sample of Maqsood Alam on a memory card which was handed over to the IO. The CDs containing the intercepted conversations and the memory card containing the voice sample were examined by PW27 who vide his report Ex.PW27/A found that the voice sample of Maqsood Alam matched with the voice contained in the intercepted conversations. It therefore stood proved that the voice in the intercepted calls of number 9852163130 belonged to Maqsood Alam.
86. As per the prosecution Maqsood Alam was talking to accused Razia about FICN. The transcripts Ex.PW23/A of the recorded conversations do contain conversations regarding supply of FICN and State vs. Mohd. Kamil & Ors.
FIR No. 28/2013, PS: Special Cell 46/54 Razia traveling to Delhi with FICN. However to establish that the voice at the other end was of Razia, the prosecution was required to obtain her voice sample and have the same analyzed from the forensic expert. However PW5 SI Amrik Singh IO admitted in cross examination that he had not taken any steps to obtain the voice sample of Razia to establish that the person speaking to Maqsood was Razia.
87. Maqsood Alam in his disclosure statement had revealed that he used to provide his mobile number and bank account number to persons seeking supply of FICN. Such persons would deposit money in his bank account of SBI and then informed him on his mobile phone. Investigation revealed ten cash deposits between 20.05.2013 to 26.06.2013 in the bank account of Maqsood maintained at SBI Account No. 32133791844 at Bardah, Dist. Munger Bihar. These deposits were made in the said account from the branch of SBI at Chilkana Sultanpur, Dist. Shaharnpur UP. PW19 produced the statement of account no. 32133791844 which as per record was in the name of accused Maqsood. The same revealed ten cash deposits in the account effected from the SBI branch at Chilkana Sultanpur, Dist. Shaharnpur UP. PW20 produced the ten cash deposit slips vide Ex.PW20/A (colly.) through which this cash was deposited from SBI Chilkana Sultanpur, Dist. Shaharnpur UP in the bank account of Maqsood at Bardah, Dist. Munger Bihar. These deposits are between 20.05.2013 to 26.06.2013. Out of the same nine bear the name of Salman as the depositor and one bears the name of Mohd.Ikram as depositor. It is to be kept in mind that the name of son of Razia is Salman and the name of her husband is Mohd. Ikram.
FIR No. 28/2013, PS: Special Cell 47/54
88. In the cross examination of PW20 a suggestion was given to the witness to the effect that cash could be deposited at the cash counter by any person. PW20 further admitted that he did not know who filled these cash deposit slips. However defence evidence was brought by the accused persons Razia and Mohd. Maqsood to explain these deposits. DW1 is the son-in-law of Maqsood. DW3 is the son of Razia and DW4 is the husband of Razia. The evidence of DW1, DW3 and DW4 supports the version of the prosecution that the said bank account belonged to Maqsood Alam and that the deposits in the same were made by Salman, son of Razia. Therefore, there is no dispute as such that the said bank account belongs to Maqsood Alam and that the deposits were made in the same by Salman and Ikram.
89. When the evidence regarding deposit of cash in the bank account of Maqsood Alam was put to Razia vide question no.30 in her statement under Section 313 of the Cr.P.C., Razia stated that it was false evidence planted by the IO. In respect of this very evidence, accused Maqsood Alam in response to question no.30 has stated that it was a matter of record. Both these accused have lead evidence in defence to explain these bank transactions. The very fact that Razia examined her son and husband i.e. DW3 and DW4 who owned these transactions reveals that the said part of the statement of Razia recorded under Section 313 of the Cr.P.C. is false.
90. DW1, DW3 and DW4 were examined to try to explain the said deposits in order to demonstrate that the same were not related to any transaction of supply of FICN between Razia and Maqsood Alam. DW1 stated he got married to the daughter of Maqsood and in order to State vs. Mohd. Kamil & Ors.
FIR No. 28/2013, PS: Special Cell 48/54 raise money for the said marriage, one Ikram friend of Maqsood had wired money in his account. This fact had been told to him by Maqsood. In cross examination, DW1 admitted that he had never met Ikram and did not have any knowledge of his profession. He did not know in which bank Maqsood had an account. The testimony of DW1 is based on what he was told by Maqsood which is hearsay. DW1 therefore cannot be a competent witness in respect of this fact.
91. DW3 Salman is the son of accused Razia. The name of his father is Ikram. He stated that he used to deposit money in the account of Maqsood at the instance of "one Ikram". In other words this "Ikram" is some person other than his father Ikram. However at the same time he deposed that his father Ikram had given him money to open his shop of mobile repair and he came to know from his father that he had borrowed money from "Ikram" who in turn had borrowed money from Maqsood. In cross examination, DW3 stated that he did not remember the bank account number of Maqsood and did not have any of the deposit slips with him.
92. DW4 Ikram, husband of Razia and father of DW3 in his examination in chief deposed that he himself had taken a loan from Maqsood for the purposes of financing the shop of Salman. This loan amount was repaid by Salman in the account of Maqsood in installments. In cross examination, he did not know where the branch of the bank account of Maqsood was. He did not know his bank account number.
93. As per the records produced by PW19 and PW20, nine State vs. Mohd. Kamil & Ors.
FIR No. 28/2013, PS: Special Cell 49/54 cash deposits were made by Salman and one by Ikram. DW1 has stated that Ikram wired money in the account of Maqsood to help him in marriage of his daughter. Thus as per DW1 Maqsood had borrowed money from Ikram and this is how the name of Ikram figures on the deposit slips. DW3 has stated that he used to deposit money at the instance of "one Ikram" from whom his father borrowed money. The attempt of DW3 seems to be to demonstrate that this "Ikram" is some person other than his own father but with the same name Ikram. However his attempt fell flat when his father Ikram as DW4 deposed that he himself had borrowed money from Maqsood. DW4 did not speak of any other "Ikram" other than himself. Moreover DW3 and DW4 contradicted the version of DW1 who had stated that "Ikram" had deposited money in the account of Maqsood Alam to help finance the marriage of his daughter with DW1.
94. The evidence of DW1, DW3 and DW4 is nothing but an orchestrated effort to set up a false defence to somehow explain the deposits of cash in the account of Maqsood. The evidence of PW19 and PW20 coupled with the evidence of DW1, DW3 and DW4 does not leave any doubt that these monies were deposited by the son and husband of Razia in the account of Maqsood Alam. The explanations of DW1, DW3 and DW4 are false and cannot be believed.
95. As per case of the prosecution, Maqsood Alam used to supply FICN to Razia against cash payment. The records of the bank account of Maqsood Alam have been discovered in pursuance to the disclosure statement of the said accused. Hence that part of the disclosure statement of Maqsood Alam regarding the details of his bank State vs. Mohd. Kamil & Ors.
FIR No. 28/2013, PS: Special Cell 50/54 account and mobile number is admissible in evidence by virtue of Section 27 of the Indian Evidence Act.
96. The bank account transactions of Maqsood Alam reveal a close nexus between Maqsood Alam and Razia as her family has regularly deposited cash in his bank account without any explanation. The only other explanation is that Razia was procuring FICN from Maqsood Alam against cash payments. The same stands established by the circumstances that Razia was apprehended with FICN from Delhi and the contents of the recorded conversations of Maqsood Alam. It therefore stand proved beyond reasonable doubt that Maqsood Alam used to supply FICN to accused Razia against cash payments.
97. It may be noted that counsel for the accused Razia had made submissions regarding the sanctity of FICN seized from accused Razia were raised by her counsel. The examination in chief of PW3 reveals that when the plastic box A was opened in Court, the same was found containing an envelope mark G5 and another 'unmarked' envelope. From the envelope G5, one wad of FICN containing 100 notes of denomination 500 was taken out. Its serial numbers were compared with the seizure memo Ex.PW3/A and found to be in order. The unmarked envelope was not opened at the time of examination of PW3. PW4 WSI Nirmala Kumari was part of the police team on 28.07.2013 which apprehended Razia. Relevant portion of her examination in chief recorded on 15.01.2014 is reproduced as under:-
"At this stage, witness identify the case property produced while examination of PW3. He pointed towards one bed of 100 notes of denomination 1000 each kept in unmarked envelope. After comparing the currency notes with seizure State vs. Mohd. Kamil & Ors.
FIR No. 28/2013, PS: Special Cell 51/54 memo Ex.PW4/A, the witness identify the bed of 100 notes recovered form accused Razia. This bed is Ex.P7. At this stage, MHCM has also produced on lady bad sealed in a parcel sealed with seal of AS. Witness identify the bag and its belonging which were recovered from accused Razia. These items of collectively Ex.P8. The ticket is Ex.PW4/F."
98. The unmarked envelope which was taken out from plastic container A at the time of examination in chief of PW3 was identified by PW4 to be the very envelope in which the FICN recovered from Razia had been kept. Its contents revealed 100 notes of FICN of denomination Rs.1000/- each. The Ld. Predecessor compared the serial numbers of the said FICN with its seizure memo Ex.PW4/A and found them to be in order.
99. PW7 had examined these FICN vide his report Ex.PW7/B bearing CFSL-2013/D-973 dated 09.09.2013. His other report Ex.PW7/A no. CFSL-2013/D-780 is dated 04.09.2013 pertaining to FICN recovered from Kamil and Anwar Ali. Record reveals that the Director CFSL vide two separate letters both dated 09.09.2013 had enclosed both these reports to the SHO PS Special Cell with direction to get the exhibits collected. It therefore may have been possible that the unmarked envelope containing the FICN recovered from Razia was put in the plastic container A and not separately. Nevertheless, the evidence of PW4 is unrebutted. She was not subjected to any cross-examination. Nothing unusual in respect of the FICN recovered from Razia and produced before the Court on 15.01.2014 is found to be recorded by the Ld. Predecessor. The only inference which can be raised is that the sanctity of the FICN recovered from Razia stood intact. Thus the submission that the case property recovered from Razia was tampered State vs. Mohd. Kamil & Ors.
FIR No. 28/2013, PS: Special Cell 52/54 is without any merit and is rejected.
100. Counsel for the accused Maqsood Alam had argued that there was no certificate under Section 65-B of the Evidence Act in the two CDs containing the downloaded intercepted conversations of Maqsood Alam. The said submission is contrary to record as the said certificate stands proved as Ex.PW5/D. It was also submitted that no mobile phone instrument was recovered from Maqsood Alam. However the interceptions of conversations were made against mobile number 9852163130 which has been found to be subscribed by Maqsood Alam and the voice in the intercepted conversations belonged to him. It was submitted that no permission of any Court was taken to record his voice samples but it is found that Maqsood Alam never raised any objection to his voice samples being taken. Hence even these submissions on behalf of the accused are to no avail.
101. The quantity of FICN i.e. Rs.1,00,000/- recovered from Razia reveals that the same was for the purposes of trafficking. Since possession is proved, Razia stands convicted for the offences under Sections 489B and 489C of the IPC.
102. Maqsood Alam has been charged under Section 120B of the IPC for being in conspiracy with Razia for trafficking of FICN. His close association with Razia stands proved by the fact that multiple deposits of cash have been made in his bank account by the son and husband of Razia. The evidence in defence to explain these payments has fallen flat. The details of the bank transactions were unearthed from the disclosure statement of Maqsood Alam. Therefore both Razia and State vs. Mohd. Kamil & Ors.
FIR No. 28/2013, PS: Special Cell 53/54 Maqsood Alam are convicted for the offence under Section 120B of the IPC.
CONCLUSION
103. The net result of the above discussion is that accused Mohd. Kamil and Anwar Ali stand convicted for the offences under Sections 489B and 489C of the IPC as well as Section 120B of the IPC.
104. Accused Razia is convicted for the offences under Sections 489B and 489C of the IPC as well as Section 120B of the IPC.
105. Accused Maqsood Alam is convicted for the offence under Section 120B of the IPC.
Announced in the open Court (REETESH SINGH)
on 29th July, 2015 ASJ-02/FTC, PHC/NDD
29.07.2015
State vs. Mohd. Kamil & Ors.
FIR No. 28/2013, PS: Special Cell 54/54