Delhi District Court
Sc No. 06/2010 State vs . Trilok Chand Bansal Page 1 Of 70 on 20 October, 2010
IN THE COURT OF SH. R.K.GAUBA, ADDL. SESSIONS
JUDGE 01 (CENTRAL) DELHI
SC No. 06/2010 (Old Nos. 31/2000 & 95/05)
ID No.: 02401R0010292000 (Old) FIR No.: 29/2000
ID No.: 02401R0595822005 (Old) PS: Karol Bagh
ID No.: 02401R0080972010 (New) U/Sec : 489B/489C/
120B/121/121A/
122/123 IPC
State
Versus
9. Trilok Chand Bansal s/o Sh. Ghisi Lal
R/o DIII/23, Rajasthan Apartment
Pitampura, Delhi. ...................................... Accused
[Note Serial no.1 to 8 below mentioned persons, with
aforementioned accused, were tried, convicted and
sentenced vide judgment dated 28.04.2007 and order
dated 28.04.2007 in Sessions Case No. 95/2005, but the
Judgment and Order on sentence against the
aforementioned accused on his Criminal Appeal No.
320/2007 was set aside and matter remanded for
proceedings from the stage of statement of accused vide
order dated 22.12.2009 of Hon'ble High Court:
1.Kamran Gauhar s/o Mohd. Shafi R/o H750,
Akbari Mandi, Bazar Nahariyan, Lahore,
Pakistan, Presently at : 13/20, Brahmpuri, 2nd
floor, WEA Karol Bagh, New Delhi.
2.Mumtaz Parveen w/o Sh. Kamran Gauhar,
13/20, Brahmpuri, 2nd floor, WEA Karol Bagh,
New Delhi.
SC No. 06/2010 State Vs. Trilok Chand Bansal Page 1 of 70
3.Harjesh Narain s/o late Balwant Rai R/o H.
No. 620, Pindi Street, Chandni Bazar,
Ludhiana, Punjab.
4.Gagan Singh Gulyani s/o Sh. Kailash Gulyani
R/o 33/12, Old Rajender Nagar, New Delhi.
5.Raju Bhasin s/o Sh. Jagdish Bhasin R/o
15A/9, WEA Karol Bagh, New Delhi.
6.Irshad Ahmed s/o late Abdul Qayyam R/o H.
No. 68, Shahpeer Gate, PS Civil Lines, Meerut,
UP.
7.Madhubala Gaind w/o Sh. Bhisham Kumar
Gaind, R/o 61/1 Ramjas Road, Karol Bagh,
Delhi.
8.Ajay Singh Rana s/o Sh. Ranjeet Singh, R/o
E399 D, New Ashok Nagar, Delhi.]
Case Instituted on: 24.02.2010 (22.04.2000)
Judgment reserved on: 30.09.2010
Judgment pronounced on: 16.10.2010
J U D G M E N T
1.This judgment will decide afresh the case against accused no.9 Trilok Chand Bansal (A9) arising out of charge sheet submitted on conclusion of investigation into FIR No. 29/2000 Police Station Karol Bagh under Sections 489B, 489C, 120, 121,121A, 122 and 123 Indian Penal Code (hereinafter, "the IPC") and Sections 4 & 5 of Explosive Substances Act, 1908, pursuant to directions contained in order dated 22.12.2009 of Hon'ble High Court in Criminal Appeal No. 320/2007 whereby the judgment dated 18.04.2007 and order on sentence dated 28.04.2007 earlier passed in Sessions Case No. SC No. 06/2010 State Vs. Trilok Chand Bansal Page 2 of 70 95/2005 was set aside to the extent thereby A9 Trilok Chand Bansal was convicted and sentenced for offences under Section 120B read with Sections 489B and 489C IPC.
2.Before adverting to the issues, it would be apposite to take note of some important facets of the case.
3.According to the prosecution case, accused no.1 Kamran Gauhar (hereinafter, "A1") is a Pakistan National. It is stated that in July 1994, he had entered into India on the basis of fake passport in the name of Mohd. Ilyas with counterfeit Indian currency with the intention of circulating it in India, allegedly at the behest of Inter Services Intelligence (hereinafter, "the ISI", an agency of military establishment of neighbouring country Pakistan). He was apprehended and prosecuted for the offence under Section 14 of Foreigners Act. After serving the said sentence, he is stated to have been deported back to Pakistan in April, 1999. It is alleged that in July, 1999, he again entered into India now in the name of Mohd. Zuber, allegedly again at the behest of the ISI. He was again arrested and deported back to Pakistan.
4.According to prosecution case, one Abdul Rashid, another Pakistan National, had come to be arrested in case FIR No. 27/2000 under Sections 121A, 122, 120B IPC and under Sections 4 & 5 of Indian Explosive Substances Act registered on 16.01.2000 in police station Delhi Cantt, and during investigation of said case it came to be disclosed that A1 was again on Indian soil living in Karol Bagh (and had allegedly passed on the explosives to the said arrestee Abdul SC No. 06/2010 State Vs. Trilok Chand Bansal Page 3 of 70 Rashid, from whom they had been recovered). The investigation is stated to have further brought out that A1 had married accused no.2 Mumtaz Parvin (hereinafter, "A2"), who was daughter of accused no.6 Irshad Ahmed (hereinafter, "A6"), the latter a resident of Meerut in Uttar Pradesh. The investigation is stated to have brought out that A1 with his wife A2 were living in 2nd floor accommodation in property no. 13/20, Brahampuri, WEA, Karol Bagh, New Delhi, taken on tenancy from Smt. Krishna, owner of the premises.
5.The initial information revealed by the said other arrestee Abdul Rashid was to the effect that A1 was active in the area of China Market, Karol Bagh Delhi and was using a metallic gray colour scooter LML bearing no. 9012.
6.The prosecution case stated that on 24.01.2000, at about 11 AM, the police team led by SI Lalit Mohan (PW11) located the scooter no. DL4S T 9012 make LML (hereinafter, "the scooter") in the parking lot of block no. 13, Brahampuri, WEA, Karol Bagh. The locality where A1 and A2 were living in the rented accommodation. It is stated that during the watch over the said scooter, it was noticed that at about 1.30 PM, a person carrying a green colour bag emerged from block no.13. The person in question would be later identified as A1. On he being so identified by the secret informer, A1 was apprehended, at a time when he was about to start the scooter while carrying the said bag over his shoulder. On interrogation, A1 is stated to have disclosed his correct identity as a national of Pakistan. It is stated that during the SC No. 06/2010 State Vs. Trilok Chand Bansal Page 4 of 70 search of the gray colour bag, he was found carrying 100 currency notes of the denomination of Rs. 500/ each, which were suspected to be fake and later, upon investigation, confirmed to be counterfeit. The bag also contained a white envelope containing two detonators, 2.900 Kgs. of RDX in pieces of different sizes and a hand grenade of military colour bearing description of "ISI82". The counterfeit currency and the other contraband were seized. Beside these recoveries at the time of arrest, A1 is stated to have been found carrying mobile phone instrument with SIM card no. 899110089903890816 pertaining to mobile no. 9810171409 (hereinafter, "the mobile phone of A1").
7.On the basis of rukka Ex. PW 1/B prepared by PW11 SI Lalit Mohan, this FIR no.29/2000 (Ex. PW 1/A) for offences under Sections 489B, 489C, 121, 121A, 122, 123, 120B IPC and under Sections 4 & 5 of Explosive Substances Act was registered and taken up for investigation.
8.The prosecution case further is that interrogation of A1 brought out the involvement of certain other persons. It is stated that A1 disclosed (vide Ex. PW 11/C) during investigation by SI Sanjay Dutt (PW22), who had taken over as the investigating officer (IO) about his residence at the address mentioned above and led the police party there, where his wife A2 was found present and from her possession 16 counterfeit currency notes of the denomination of Rs. 500/ each SC No. 06/2010 State Vs. Trilok Chand Bansal Page 5 of 70 were recovered (vide memo Ex. PW 11/D), resulting in her arrest after personal search (vide memo Ex. PW 11/E).
9.A1 is stated to have made a disclosure about other persons to whom he had supplied counterfeit Indian currency notes for circulation. He led the police to house no. 4/15, WEA, Brahampuri of accused no.3, Harjesh Narain (hereinafter, "A3") who was found present and from whose possession 29 counterfeit currency notes of the denomination of Rs. 500/ were recovered and taken into possession (vide Ex. PW 11/F), resulting in he being arrested (after personal search vide Ex. PW 11/G). A1 is stated to have led the police party thereafter to the house of accused no. 4 Gagan Singh (hereinafter, A4) where the said A4 was found present. It is stated that from the possession of A4, 25 counterfeit currency notes of the denomination of Rs. 500/ were recovered and seized (vide memo Ex. PW 11/H) resulting in A4 being arrested (after personal search vide memo Ex. PW 11/J).
10.It is further stated that A1 led the police to Hotel Mehar Castle in Karol Bagh. In the said hotel, its owner accused no.5 Raju Bhasin (hereinafter, "A5") was found present. During search, A5 was also found having in his possession 14 counterfeit currency notes of the denomination of Rs. 500/ which were seized vide memo (Ex. PW 11/K). A5 was also arrested (after personal search vide memo Ex. PW 11/L).
11.It is further the case of the prosecution that on the basis of disclosure of A1, the police party went to Meerut, Uttar Pradesh with A1 in its custody. On the pointing out of A1, a raid was carried in SC No. 06/2010 State Vs. Trilok Chand Bansal Page 6 of 70 House No. 68, Shahpir Gate, near Civil Lines, Meerut, Uttar Pradesh, in use as residence of A6, the fatherinlaw of A1, from where counterfeit currency notes, 98 in number of Rs.100/ denomination and 10 counterfeit currency notes of Rs.500/ denomination were recovered and seized vide memo (Ex. PW 12/C). A6 was also arrested (after personal search vide memo Ex. PW 12/A).
12. It was then stated by the prosecution that A3, during interrogation, disclosed the involvement of Accused no.7 Madhubala Gupta, resident of 61/1, Ramjas Road, Karol Bagh, Delhi (hereinafter, "A7"). On 27.1.2000, at the instance and on the pointing out of A3, a raid was carried in the house of A7, from where three packets each containing 100 counterfeit currency notes of Rs.500/ denomination and 5 packets containing 100 counterfeit currency notes of the denomination of Rs. 100/ were recovered and seized vide memo (Ex. PW 12/B) leading to she being arrested (after personal search vide Ex. PW 12/E).
13.The prosecution case further is that on 27.1.2000, A1, during interrogation, made further disclosure (vide Ex. PW 11/M). He led the police to his earlier residence at 480, Chhata Lal Mian, Chandni Mahal, Delhi which on being opened, resulted in recovery of 20 packets each containing 100 counterfeit currency notes of the denomination of Rs. 100/ and 6 packets each containing 100 counterfeit currency notes of the denomination of Rs. 500/ each which were seized vide memo (Ex. PW 11/N).
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14.It is further the case of the prosecution that during the interrogation A3 had also disclosed involvement of accused no.8 Ajay Singh Rana (hereinafter, "A8") in the wake of which A3 led the police on 30.1.2000 to Mayur Vihar PhaseI where, on the pointing out of A3, A8 was apprehended and on his house (E339D, New Ashok Nagar, Delhi) being searched, he was found having in his possession counterfeit currency notes of the total value of Rs. 26,000/ in the denomination of Rs. 500/ each which were seized vide memo (Ex. PW 12/K) resulting in he being arrested.
15.It is stated that on 02.02.2000, during investigation, A1 made supplementary disclosure statement (Ex. PW 12/L) which brought out involvement of accused no. 9 Trilok Chand Bansal (hereinafter, "A 9"). It is alleged that A1 had disclosed that he used to utilize the services of A9 for hawala transactions so as to pass on the money collected by him through circulation of counterfeit Indian currency brought by him from Pakistan. It is stated that A9, a dealer in gems in the name and style of Ghisi Lal & Co., the name representing his parentage. He is stated to be running his business from premises no. A1211, Maliwara, Chandni Chowk, Delhi (hereinafter, "shop of A 9"). The prosecution case alleged that A1 led the police party to the said shop of A9, where A9 was found present. The search of the shop allegedly brought out one Mobile telephone make Panasonic with SIM card of mobile no. 9811107805 (hereinafter, "the mobile phone of A9") and one slip representing record of hawala transaction. SC No. 06/2010 State Vs. Trilok Chand Bansal Page 8 of 70
16. It is the case of prosecution that House No.13A/20, Brahampuri, WEA, Karol Bagh, Delhi where A1, with his wife A2, were found residing belongs to the mother of Subhash Chander (PW4) and had been let out through Goodwill Property Dealer to A3 but being used by A1, his close acquaintance. It is further stated in the prosecution case that the scooter, which was found to be in use of A1 at the time of his arrest on 24.01.2000, actually belongs to A3.
17. The investigation is stated to have brought out that Mukesh Verma son of Sh. Ramesh Chand (PW5) runs a STD booth in the name and style of Sham Telephones in the area of Maliwara with the help of Srikishan (PW10), in a shop in the vicinity of the shop of A9. It is alleged that A9 was a regular visitor to the said STD booth and had taken facility of conference calls. The records of the said STD booth indicated that during the period 13.01.2000 to 24.01.2000, A9 had called certain number ( 0092427669617) in Pakistan on 41 occasions through the said STD booth.
18.It is stated in the case that A1 was in regular telephonic contact with A3; the record of the mobile phone of A1 and the landline no. (5841557) of A3 showing both having been in touch with each other 76 times. Similarly, A1 was in regular contact with A4, mobile phone of A1 having been in contact with land line numbers (5729977, 5759552, 5719027 and 5763121) of the latter having been connected 50 times. Further, A1 was in regular contact with A5, the mobile phone of A1 having been in contact with land line numbers SC No. 06/2010 State Vs. Trilok Chand Bansal Page 9 of 70 (5814072, 5814073 and 5814074) of A5, showing the two being in contact with each other 18 times. Further, A1 was also in contact with A7, mobile of A1 having connected at least once with telephone no. (5725715) of A7.
19.In addition to the above contacts, it is alleged that A1 was also in regular contact with A9, the Mobile phone of A1 having connected the mobile phone of A9 and land line numbers (3280736 and 3270585) of A9, as many as 16 times. All these contacts are stated to have occurred during the period 12.12.1999 to 23.12.2000.
20.In addition to the above, the prosecution stated that A1 had talked to certain telephone number in Pakistan through his mobile number on 61 occasions during the same period.
21.During the investigation, the suspected currency notes seized from various accused persons were confirmed to be counterfeit Indian currency. The detonators and the handgrenade with RDX were found to be explosive substances.
22.On conclusion of investigation, charge sheet was laid in the court of Metropolitan Magistrate on 22.4.2000 seeking trial of 9 accused persons. The investigation is stated to have brought out the involvement of two other persons namely Deepak Chadha and Rohit Chadha, but both could not be arrested and came to be declared proclaimed offenders. Ld. Metropolitan Magistrate took cognizance and thereafter complied with the provision of Section 207 Cr.P.C. Vide order dated 12.5.2000, the case against all nine accused persons was committed to Sessions.
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23.Upon being allocated the case, my ld. predecessor considered the question of charge. A detailed order was passed on 13.9.2000, in terms of which charges for offences under Section 489B, 489C read with Section 120B IPC were framed against all the nine accused persons, including A9. In addition, charges for offences under Sections 4 & 5 of Explosive Substances Act, Section 14 of Foreigners Act and Sections 121, 121A, 122 IPC and Section 123 IPC were also framed against A1. All the accused pleaded not guilty.
24.The prosecution led evidence in the joint trial of A1 to A9, by examining, in all, 22 witnesses as under:
(i) HC Ombir Singh, (PW1), the duty officer who registered the FIR on the basis of rukka of SI Lalit Mohan;
(ii)HC Om Prakash, (PW2), who was posted as MHC (M) in malkhana of the police station during the relevent period and had received the recovered case property entering it in malkhana register;
(iii) Mr. Baljit Singh Rathi, (PW3), an official of transport department who proved the fact that scooter is registered in the name of A3;
(iv) Mr. Subhash Chander, (PW4), who proved the letting out of the premises bearing H. No. 13A/20, Brahmpuri, WEA, Karol Bagh, New Delhi in favour of A3;
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(v) Mr. Ramesh Chand (PW5) whose son Mukesh Verma, works in the name of Sham Telephones from where A9 is stated to have used the conference facility for contacting certain telephone number in Pakistan during the period 1.1.2000 to 29.01.2000;
(vi) Mrs. Seema Sharma, (PW6), an executive of Bharti Cellular Ltd who proved call details of Mobile number of A1;
(vii) Mrs. Nivedita Nayyar, (PW7), an acquaintance of A8 who deposed about he having propositioned to her the circulation of counterfeit Indian currency notes inviting her involvement;
(viii) Mr. Bharti Sehgal, (PW8), a public witness who is stated to have been joined by police in the raid leading to the arrest initially of A1 on 24.01.2000;
(ix) Major (Retd) A.R. Satish (PW9), an executive of Sterling Cellular Ltd., Okhla who proved call details of mobile phone of A9;
(x) Sh. Sri Kishan, (PW10) a person connected with STD booth "Sham Telephone", who only reiterated what was deposed by PW5;
(xi) SI Lalit Mohan, (PW11), a member of the raiding party on 24.01.2000 leading to the arrest initially of A1 SC No. 06/2010 State Vs. Trilok Chand Bansal Page 12 of 70 and who had been involved in the events prior thereto as well;
(xii) Inspector Hridaya Bhushan, (PW12), who joined the other police officials in the investigation on 26.01.2000 when the house of A6 in Meerut was raided and on 28.01.2000 and 30.01.2000 when A7 and A8 were arrested, as also in the raiding party that is stated to have visited the shop of A9 on 02.02.2000 resulting in the alleged seizure from and arrest of A9;
(xiii) Dr. S.C.Mittal (PW13), Principal Scientific Officer from CFSL, CBI who gave opinion about the currency notes seized from different accused persons confirming them to be counterfeit.
(xiv) SI Dhara Mishra (PW14), who was joined at the time of raid in the house of A7 leading to recovery and arrest;
(xv) Mr. S.C. Patni, (PW15), Dy. Secretary Home of Govt. of NCT of Delhi to prove sanction for prosecution under Section 121,121A,122,123 IPC (Ex. PW 15/A); (xvi) Mr. Mukesh Prasad, (PW16), who was working as Dy. Secretary Home of Govt. of NCT of Delhi to prove sanction for prosecution under Section 4 & 5 of Explosive Substances Act (Ex. PW 16/A);
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(xvii) ASI Pyare Lal, (PW17), who proved DD entires no. 3 & 7, both dated 24.01.2000 regarding departure of SI Lalit Mohan with his team in search of A1 and departure of Inspt. Mohan Chand Sharma to the place of arrest of A1 with Ct. Anil Kumar;
(xviii) SI Rakesh Malik, (PW18), who provided the
keys of House No. 486, Chhatta Lal Mian, Chandni
Mahal from malkhana of PS Karol Bagh, which had been recovered from A2, and with which the said house was opened and searched on 27.01.2000, and who was involved in taking the recovered counterfeit currency to Security Printing Press, Dewas on 06.02.2000, (though returned with the said case property since the said office would not accept the responsibility of taking it for opinion);
(xix) Ct. Vikram Singh, (PW19), who was with police party on 24.01.2000, when A1 was arrested and later, on 31.01.2000, had taken the sealed parcel from malkhana to CFSL;
(xx) Inspector Badrish Dutt, (PW20), who had taken the seized Hand granade to ridge area where it was defused by staff of National Security Guards (NSG), and thereafter, redeposited the remnants in the malkhana SC No. 06/2010 State Vs. Trilok Chand Bansal Page 14 of 70 with the report of officials of Bomb Disposal Squad (BDS) about the action taken;
(xxi) SI Jai Kishan, (PW21), who took the sealed parcel to CFSL on 15.02.2000 and deposited the same there and on 24.07.2000 took the currency notes to Security Press, Nashik and deposited the same there; and (xxii) SI Sanjay Dutt, (PW22), the investigating officer, (IO).
25.After the prosecution evidence had been concluded, the statements of accused persons were recorded under Section 313 Cr.P.C. in which they denied the evidence as incorrect and claimed to be innocent. All the accused persons including A9 at that stage declined to lead any evidence in defence.
26.My ld. predecessor thereafter heard arguments. On conclusion of the said proceedings, judgment dated 18.04.2007 was passed whereby accused persons A1 to A8 were held guilty and convicted for offences under Section 489B and 489C and 120B IPC. In addition A1 was also found guilty and convicted for offences under Section 14 of Foreigners Act and Sections 4 & 5 of Explosive Substances Act, though acquitted of the charges under Sections 121,121A, 122, 123 IPC. Vide the said judgment dated 18.04.2007 passed by Sh. N.P. Kaushik, Addl. Sessions Judge. A9 was held guilty and convicted for offence under Sections 120B IPC read with Sections 489B/489C SC No. 06/2010 State Vs. Trilok Chand Bansal Page 15 of 70 IPC. After the said judgment, my ld. predecessor passed the order on sentence on 28.4.2007.
27. I am informed that appeals were preferred by all the nine persons convicted vide the aforementioned judgment dated 18.04.2007. The appeals of A1 to A8 are stated to be presently pending before the Hon'ble High Court.
28.The criminal appeal no.320/07 preferred by A9 was heard by the Hon'ble High Court on 22.02.2009. It was found by Hon'ble Mr. Justice Mool Chand Garg, that the statement under Section 313 Cr.P.C. of A9 contained certain questions which suffered from errors. The errors noticed, particularly in questions no. 52 and 58, were found by the Hon'ble Judge to be grave mistakes. The Hon'ble High Court, therefore, "partly allowed" the appeal of A9. As a consequence, the judgment dated 18.04.2007 and order on sentence dated 28.04.2007 were set aside qua A9 in so far as thereby he was convicted and sentenced. The case was remanded back to this court for recording additional statement of A9 under Section 313 Cr.P.C. after putting him the correct questions on the basis of evidence which has come on record so that he could answer the same and, if required, for giving him opportunity for adducing defence evidence. Vide the said order dated 22.12.2009, this court was directed to try to conclude the proceedings against A9, after remand, within a period of six months from the date of appearance of A9 for the aforesaid purposes.
29.It appears that when the trial court records were returned with copy of the said order, one part bearing part no. 3 was found to be not SC No. 06/2010 State Vs. Trilok Chand Bansal Page 16 of 70 included therein. My Ld. predecessor took up this matter with registry of the Hon'ble High Court. This deficiency in the trial court record, as returned, was brought to the notice of the Hon'ble High Court and reports were called in that respect leading to the order dated 22.02.2010 in Crl. M.A. No. 1078/10 whereby it was observed that despite inquiry the missing part could not be traced nor responsibility (for the loss) fixed. It was found that the missing volume does not contain any material document relevant for the purposes of recording the statement of A9 under Section 313 Cr.P.C. The Hon'ble High Court, thus, directed this court to proceed with the matter even in the absence of the said missing part of the trial court record and try to conclude the proceedings within the period of six months.
30.My ld. predecessor recorded the additional statement of A9 on 24.04.2010. In the said additional statement, A9 claimed to be innocent and falsely implicated. He stated that he had no role in the case nor any such incident had ever happened. He claimed he was not present at the shop when police had come. He stated his employee had informed him about the police having come to his shop and when he reached there, he was taken to office of Special Cell and that no recovery was made from him or from his shop. He sought opportunity to lead evidence in defence.
31.In his defence evidence, A9 examined Mr. Anil Kumar Sharma, (DW1), his employee working under him for the last 12 years. DW1 deposed about the visit of the police to the shop on A9 on 02.02.2000 SC No. 06/2010 State Vs. Trilok Chand Bansal Page 17 of 70 at a time when A9 was not present. He deposed that on the asking of the police, he had called A9 from his house and when A9 came, the police searched the shop in the presence of A9 but nothing was recovered. He said the police had obtained his signatures on some papers and then took A9 with them.
32. I have heard Sh. R.K. Tanwar, Addl. PP for the State and Sh. Ashwin Vaish, advocate for A9 at length. During the course of arguments, I have been taken through the entire record. I have given my considered thoughts to the relevant contentions urged before me.
33.Since A9 is shown by the prosecution case to have been arrested in the wake of arrest of other accused and on the basis of disclosure made by A1 leading to recovery from various places and persons of counterfeit Indian currency notes, after A1 is stated to have been apprehended on 24.01.2000 and since A9 was sent for trial with other said accused persons (A1 to A8) through the same charge sheet and actually stood trial jointly with them, particularly in view of the nature of charge framed against each of them, it is necessary to take note of the evidence in its entirety, including the evidence that incriminates A1 to A8. It would not be fair or proper to examine the case through the prism of evidence specific to A9 in isolation or divorced from the evidence against others, particularly in view of the charge of the criminal conspiracy.
34.Since in a case involving charge of criminal conspiracy, the acts of commission/omission of coaccused are liable to be used as incriminating circumstance against another person accused to be co SC No. 06/2010 State Vs. Trilok Chand Bansal Page 18 of 70 conspirator, I have revisited the evidence against A1 to A8 to reassure myself as to their complicity before appreciation if the same would have a bearing on the charge against A9, this notwithstanding the conviction of said eight others vide judgment dated 18.04.2007 presently subject matter of appeal pending before Hon'ble High Court.
35.As mentioned at the out set, A1 is stated to be a Pakistan national. During his statement under Section 313 Cr.P.C., A1 admitted this fact and rather termed his arrest in this case and two other cases on account of he being a Pakistan national. The evidence of PW11, PW12, PW18 and PW22 shows that A1 was married to, and living with, A2 in H. No. 13/20, 2nd floor, Brahmpuri, WEA, Karol Bagh, New Delhi. The evidence of PW11, PW12 and PW22 shows A2 is the daughter of A6, a resident of H. No. 68, Shahpir Gate, Police station Civil Line, Meerut, UP.
36.The evidence of PW8, PW11, PW12, PW19 and PW22 collectively brought out that A1 was found in the area of block no.13, Brahmpuri, WEA, Karol Bagh, Delhi in the vicinity of the house where he was residing and thus, on Indian soil on 24.01.2000. It is not his case that he was in India on a valid passport or visa. There is, thus, no escaping the conclusion that his presence in India on 24.1.2000 was in violation and within the mischief of Section 14 of Foreigners Act, a conclusion already reached resulting in he being convicted on that account by my ld. predecessor in the judgment dated 18.04.2007.
37.The evidence of PW4 shows that house no.13A/20, Brahmpuri, WEA, Karol Bagh, New Delhi held in the name of his mother Smt. SC No. 06/2010 State Vs. Trilok Chand Bansal Page 19 of 70 Krishna (since expired) was let out through Goodwill Property Dealer to A3. The evidence of PW11, PW12, PW18 and PW22 collectively shows that this premises was found to be in use as residence by A1 living with his wife A2 when the place was visited and searched on 24.01.2000 after A1 had been apprehended out side.
38.Though A3 tried to distance himself from the aforesaid premises by putting suggestions to PW4 to the effect of denial of he having taken over the premises on rent, his close acquaintance with A1 comes to fore even otherwise in the context of the scooter. PW8, PW11 and PW19 have deposed about the arrest of A1 from Block No.13, Brahmpuri, WEA, Karol Bagh, New Delhi at a time when he was in the process of starting the scooter carrying a bag which was later found containing explosive substances and counterfeit Indian currency notes. The evidence of PW3 has confirmed that the scooter in question is registered in the name of A3.
39.Thus, the above discussed part of evidence leaves no room for doubt that A3 was quite thick with A1 in that he had not only allowed the latter to put up his residence in the premises taken on rent by him from the mother of PW4 but also allowed him mobility by lending him his scooter.
40.The evidence of PW11, PW12, PW18 and PW22 shows that when pursuant to the disclosure of A1 (vide Ex. PW 11/C), they went to his residence in premises no.13A/12, Brahmpuri, WEA, Karol Bagh on 24.01.2000, A2 was found present. Besides the recovery of counterfeit Indian currency notes of which reference shall be made a SC No. 06/2010 State Vs. Trilok Chand Bansal Page 20 of 70 little later, the key of H. No. 480, Chhatta Lal Mian, Chandni Mahal was also recovered. This key was deposited along with other recovered articles in the malkhana of PS Karol Bagh. The disclosures made by A1 and A2 indicated that this couple was earlier residing in the said other premises on 27.01.2000. In the wake of the disclosures, the said house was searched after being opened with the said key and recoveries of counterfeit Indian currency notes were made even from there. For the present, it may be noted that this evidence leaves no room for doubt that A1 and A2 had been earlier living in House no. 480, Chhatta Lal Mian, Chandni Mahal before shifting to the house in Brahmpuri as aforesaid.
41.PW11 and PW19 have deposed about the information gathered respecting the presence and activities of A1 in India. PW11 is more elaborate in this regard. He deposed about the arrest of Abdul Rashid also a Pakistan national, and two others on 16.01.2000 in FIR no.27/2000 of PS Delhi Cantt registered under Sections 121A, 122, 120B IPC and under Section 4 & 5 of Explosive Substances Act and disclosure by the said Abdul Rashid respecting A1. The police record shows connection of A1 with the premises no. 480 Chhatta Lal Mian, Chandni Mahal during his earlier involvement and circulation of counterfeit currency in Delhi. According to PW11, information was collected which revealed that A1 was using LML scooter bearing registration no.9012, of gray colour and had been seen in the area of China Market, Karol Bagh, Delhi on which focus shifted to SC No. 06/2010 State Vs. Trilok Chand Bansal Page 21 of 70 that particular area, leading ultimately to A1 being sighted in the parking of block no.13 WEA, Karol Bagh approaching the scooter in question (Ex.P4). The word of PW11 and PW19 in such regard is corroborated by that of PW8, an independent public witness joined for the purposes of the aforesaid proceedings conducted thereafter.
42.The evidence of PW8, PW11 and PW19 collectively shows that when apprehended in the parking of block no.13, Brahmpuri, WEA, Karol Bagh, in the process of starting the scooter (Ex.P4), on 24.10.2000 at about 1.30 PM, A1 was found carrying a green colour bag (Ex.P1), which on being checked was found containing 100 currency notes of the denomination of Rs.500/each (collectively Ex. P10), two detonators (Ex. P5 & P6), pencil timers (Ex. P7 and P8), hand grenade (Ex.P9), RDX to the extent of 2.900 Kgs (Ex. P3), besides the personal clothes (Ex. P2).
43.The crossexamination directed against the above mentioned three witnesses could not bring out any major or material contradiction. The evidence of PW11 and PW19 finds full support from the evidence of independent witness PW8. My ld. predecessor vide his judgment dated 18.04.2007 was fully convinced with this part of the evidence and thus accepted the same, thereafter, returning the finding that these items were recovered from A1 in the after noon of 24.01.2000. The evidence of PW13 confirmed that currency notes recovered from A1 at the time of his arrest were counterfeit. Similarly, the evidence of PW22 read with reports Ex. PW 22/L and SC No. 06/2010 State Vs. Trilok Chand Bansal Page 22 of 70 PW 22/N confirms that other above mentioned items recovered from the possession of A1 at the time of his arrest were explosive substances. My ld. predecessor in his judgment dated 18.04.2007, thus, found A1 guilty for offences punishable under Sections 489B, 489C read with Section 120B IPC and under Sections 4 & 5 of Explosive Substances Act,1908.
44.After A1 had been apprehended in the raid by a team of police officials (in which PW 11 and PW19 were the members and which had joined PW8 independent public witness), PW22 came at the scene and took over investigation. On the basis of disclosure of A1, PW22 with PW 11 and PW12 visited the premises on the 2nd floor of H. No.13A/20, Brahmpuri, WEA, Karol Bagh, New Delhi on 24.1.2000, when A2 was found present there. The evidence of these witnesses shows that 16 fake currency notes of the denomination of Rs.500/ (collectively Ex.P11) were recovered from her possession. These currency notes were also later sent for opinion to CFSL and the report of PW13 in this regard confirms that the same was counterfeit currency.
45.A2, being wife of A1, was living with him under the same roof. Besides this, she herself has been found in possession of counterfeit currency. Being a person living under the same roof as wife of A1, it can be safely inferred that she would be aware of his antecedents and activities. A1 was found having in his possession explosive substances in addition to the counterfeit currency. In the given SC No. 06/2010 State Vs. Trilok Chand Bansal Page 23 of 70 circumstances, knowledge about the activities of A1 can be safely imputed to A2 which ordinarily would have put her on guard. The fact that she was found having, in her own possession, the counterfeit currency shows that she was party to the design with which A1 was operating visavis counterfeit Indian currency. This is further shown and cemented by the fact that at the time of search of H. No. 480, Chhatta Lal Mian, Chandni Mahal, where the couple was earlier residing, counterfeit currency notes to the extent of 20 packets containing 100 notes each of the denomination of Rs.100/ and 6 packets containing 100 notes each of the denomination of Rs.500/ (collectively exhibited Ex.P15) were recovered from that house as well.
46.In the face of above abundant evidence, there is no doubt about the facts that A1 and A2 were together in the business of counterfeit Indian currency notes. A2 also, thus, was found guilty for the offences under Section 489B and 498C read with Section 120B IPC by my ld. predecessor vide judgment dated 1804.2007.
47.Since A6 is the father of A2 and, therefore, fatherinlaw of A1, evidence against him may be recapitulated and reappreciated, for the purpose of this judgment, ahead of others.
48.The evidence of PW12 and PW22 leaves no room of doubt that A6 is resident of 68, Shahpeer Gate, PS Civil Lines, Meeru, U.P. The said house was raided on 26.01.2000 when the police party took along A1 in its custody. As per evidence of these witnesses, the wife and two other children of A6 were also present in the house at that stage. SC No. 06/2010 State Vs. Trilok Chand Bansal Page 24 of 70
These witnesses have testified about A6 having produced a polytehen bag kept in steel almirah which, on checking, was found to contain 48 currency notes of the denomination of Rs.100/ and 10 currency notes of the denomination of Rs. 500/, all suspected to be fake currency. These currency notes of suspect origin were seized, after being sealed, vide seizure memo Ex. PW 12/C and A6 was arrested after personal search vide memo Ex. PW 12/A. The currency notes so seized were part of the case property which was examined in CFSL by PW13, who has confirmed it to be counterfeit currency.
49.My ld. predecessor did not find any reason to disbelieve the above evidence and thus concluded that A6 had been found having in his possession counterfeit currency notes of the total value of Rs. 14,800/, and he consequently found him part of criminal conspiracy convicting him for offences under Sections 489B and 489C read with Section 120B IPC.
50. As mentioned earlier A1 had been arrested on 24.01.2000. His disclosure led the police to his house in property no. 13A/20, Brahmpuri, WEA, Karol Bagh, Delhi where his wife A2 was found also having in her possession counterfeit currency notes. In the wake of disclosure and recoveries, A2 was also arrested. A1 had also made disclosure about A3, A4, and A5. PW11, PW12 and PW22 have deposed about the arrests and recoveries from A3, A4 and A5. Their evidence was taken note of at length by my ld. predecessor in his SC No. 06/2010 State Vs. Trilok Chand Bansal Page 25 of 70 judgment dated 18.04.2007. The same may be retraced for present purposes hereinafter.
51. PW11 has testified that A1 led the police party to House No. 4/15, WEA, Brahmpuri, Delhi. It was the house of A3. As already mentioned, A1 has a close acquaintance and connection with A3, in that he (A3) had let A1 set up residence in a premises which was taken by him (A3) on rent and had let him (A1) use his (A3) scooter. According to PW11, the search in the house of A3 had led to recovery of 29 counterfeit currency notes of the denomination of Rs.500/ which were sealed and, thereafter, taken in possession vide memo Ex. PW11/F. In the wake up of this seizure, A3 was also arrested vide personal search memo Ex. PW11/G. These currency notes have been produced collectively as Ex. P12 in this evidence.
52.PW11 further testified that A1 had led the police to house no.33/12, Old Rajinder Nagar, New Delhi where A4 was found present. According to him, A1 had produced 25 currency notes of the denomination of Rs.500/ which were suspected to be fake and which were, therefore, seized vide memo Ex. PW 11/H, after being sealed. These 25 currency notes have been produced as Ex. P13 collectively. On account of this seizure, A4 was also arrested, after personal search vide memo Ex. PW 11/J.
53.PW11 also testified that A1 had led to Hotel Mehar Castle in Karol Bagh where its owner A5 was found present. According to PW11, casual search of A5 had resulted in recovery of 14 currency notes of the denomination of Rs.500/ which were found to be fake SC No. 06/2010 State Vs. Trilok Chand Bansal Page 26 of 70 and, therefore, seized after being sealed vide memo Ex. PW 11/K. The said 14 fake currency notes seized from A5 were produced during his evidence as Ex. P14 collectively.
54.The evidence of PW11 finds full corroboration from the evidence of PW22 in above regard. The currency notes Ex. P12, P13 and P 14 as aforementioned shown seized from A3, A4 and A5 respectively were also examined in CFSL by PW13. His evidence confirms that they are counterfeit currency.
55.The fact that A1, A3 and A4 were together is further confirmed not only by way of connection between A1, A3 and A4 on one hand but also by nexus between A3 and A4 on the other. Both of them were closely acquainted with each other and even on visiting terms, which is proved by evidence of PW4, in a portion of whose house the tenancy had been created of a portion in favour of A3, but actually used by A1.
56.In the face of above abundant material, coupled with evidence respecting the call details of telephone connections of various players in this case, which shall be seen a little later, my ld. predecessor had no hesitation in returning the finding that evidence respecting recoveries and the close liaison between A1, A4, A5 and A6 had brought out complicity of the latter three as well in the criminal conspiracy (involving A1) concerning the offences under Sections 489B and 489C read with Section 120B IPC and thus found A4, A5 and A6 guilty on that count.
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57.The involvement of A7, A8 is shown to have been brought to light through disclosure attributed to A3. In this regard, the evidence of PW12, PW14 and PW22 is relevant which may now be seen. PW 12 has deposed that on 28.01.2000, A3 had made a disclosure statement Ex.PW12/D, pursuant to which the police party went to H.No. 61/1, Ramjas Road, Karol Bagh, of A7, who was found present. For the purpose of this raid, woman SI Dhara Mishra (PW14) had also been joined in the raiding party.
58.According to PW12, the house was searched with the help of PW
14. On being questioned, A7 made a disclosure statement vide memo Ex. PW 12/F. According to the evidence of these witnesses, A7 produced a polythene bag from a steel Almirah in her house which was found containing 3 packets of 100 currency notes each of the denomination of Rs.500/ besides 5 packets of 100 currency notes each of the denomination of Rs.100/ which were suspected to be fake currency and, therefore, seized vide memo Ex. PW 12/G. These currency notes have been produced in his evidence collectively as Ex. PW 17. His word in this regard is fully supported by evidence of PW 14 and PW22.
59.The fact that A7 had got involved in trafficking counterfeit currency notes at the instance of A3 is demonstrated by the fact that he was privy to she being in possession of fake counterfeit currency notes. The fact that she was aware of A1 being the kingpin is shown SC No. 06/2010 State Vs. Trilok Chand Bansal Page 28 of 70 further by the telephonic connection between her and A1 as depicted by the evidence respecting call details which shall be noticed later.
60.In the above facts and circumstances, my ld. predecessor at the time of rendering the judgment dated 18.04.2007 found the evidence of PW12, PW14 and PW22 credible enough in so far as it pertained to the recovery of counterfeit currency notes. The said recovered case property had also been examined by PW13 whose report leaves no room for doubt that the same is counterfeit currency. In these circumstances, finding of guilty for offences under Sections 489B and 489C read with Section 120B IPC was returned by my ld. predecessor against A7.
61.As in the case of A7, it was A3 who led the police to A8. Evidence in this regard is again unfolded through PW12 and PW22. In above context, the prosecution also relied on the evidence of PW7.
62.PW12 testified that A3 had led the police party including him on 30.1.2000 to Mayur Vihr PhaseI near Samachar Apartment, where on the pointing out of A3, A8 was apprehended. His evidence further shows that A8, upon interrogation, made disclosure vide Ex. PW 12/J and led the police party to his house no. E339D, New Ashok Nagar where A8 brought out an iron trunk lying near a cot from which a polythene bag containing fake currency notes in the denomination of Rs.500/ of the value of Rs. 26,000/ were recovered. The said currency notes being suspect were seized vide memo Ex. PW 12/K, after being sealed. The currency notes seized from the possession of A8 were proved during his evidence as Ex.P18 SC No. 06/2010 State Vs. Trilok Chand Bansal Page 29 of 70 collectively. The evidence of PW12 finds resonance in the statement of PW22.
63.The currency notes suspected to be fake recovered from A8 were also sent to CFSL and examined by PW13. The report of P13 leaves no room for doubt that they were counterfeit currency notes.
64.The fact that A8 was in possession of the said counterfeit currency notes with knowledge about they being counterfeit can be inferred from the mere possession, given the quantity found in his possession and also from the fact that he was apparently in league with A3 from whom he appears to have received the same.
65.In addition, the evidence of PW7 leaves no room for doubt about the complicity of A8. PW7 is an acquaintance of A8. She has deposed that she had met him in 2nd week of January 2000. She deposed that A8 had offered to her a business with huge profit and that he had taken her in her car to Lal Quila side where he had delivered some money. At that place, 23 other persons had come and she was shown the currency notes of the denomination of Rs.500/. She deposed that she had declined the offer made by A8, apparently having understood the illicit nature of the business proposition. Though, PW7 was unable to link the other accused persons with this episode, her evidence respecting A8 remains unassailable. My learned predecessor found this as an important incriminating circumstance and on appraisal of evidence respecting A8 found him SC No. 06/2010 State Vs. Trilok Chand Bansal Page 30 of 70 guilty, inter alia, on that basis for offences under Sections 489B and 489C read with Section 120B IPC.
66.A1 to A8 were thus found guilty and convicted vide judgment dated 18.04.2007 passed by my ld. predecessor. While acquitting A1 of the charge under Sections 121/121A/122/123 IPC, he was held guilty and convicted for offences under Sections 489B,489C read with Section 120B IPC and under Sections 4 and 5 of Explosive Substances Act.
67.A1 to A8 were held guilty for offences under Sections 489B, 489C read with Section 120B IPC. The presumption of innocence respecting the said eight persons at the commencement and during the trial, thus, stood effaced. Given these facts and circumstances, in the case against A9, it will not be possible or proper to proceed on the presumption of innocence qua A1 to A8. It has to be borne in mind that the trial against all of them was jointly held.
68.It is now proper stage to examine the evidence which is specific to A9.
69.The evidence respecting A9 has been presented mainly through PW5, PW9, PW10 , PW12 and PW22.
70.The evidence of PW5 and PW10 is in fact, on similar lines, respecting the use of their STD booth. PW5 identified A9 as the person who had availed the facility of conference calls from his public booth. He produced the original register maintained in STD booth and on the basis of those entries recorded in ordinary course of business SC No. 06/2010 State Vs. Trilok Chand Bansal Page 31 of 70 proved the photo copies Ex.PW5/A (17 leaves) and Ex. PW5/C ( 24 leaves) which were seized vide memo Ex. PW 5/B. These records pertain to the period 01.01.2000 to 13.01.2000 and 13.01.2000 to 24.01.2000 respectively.
71.During his crossexamination, PW5 stated that his elder brother Sri Kishan and he looked after the business. He made notings in the register during day time while his brother carried out this task in the evening hours. He confirmed that he knew A9 who deals in jewellary since 56 years prior to the occurrence. He confirmed that the entries were made in the register contemporaneously to the calls made. He denied the suggestion that the register for the period 01.01.2000 onwards produced by him on 23.05.2002 (in continued examination after his earlier statement on 07.11.2001 and 19.12.2001) was a fabricated record for the reasons it was not produced earlier. This suggestion, apparently, is devoid of substance in as much as photo copies were already filed with the charge sheet and, thus, there was no possibility of record being fabricated during the interregnum (period 19.12.2001 to 23.05.2002).
72.PW5 stated in crossexamination that A9 is a good person with good behavior and he had not heard any complaint against him. This certification is based on his perception of the individual and cannot be the final word.
73.PW10 also referred to Ex. PW 5/C (24 leaves) which had been seized vide memo Ex. PW 5/B and referred to earlier by PW5 and SC No. 06/2010 State Vs. Trilok Chand Bansal Page 32 of 70 confirmed the use of the conference facility from this STD booth by A9 also stating that A9 had a shop in the vicinity.
74.In crossexamination, PW10 conceded that he would not know as to which particular individual had actually used the conference facility from the shop of A9, explaining that since his telephone (i.e. of A9) was used, name of A9 was mentioned in the register of STD booth, which record was maintained to calculate the amount to be received from the customer. PW10 further explained, during cross examination, that the called numbers were noted down in the register from the display in the STD booth, though the customer himself would dial the required number from his own place. He conceded that telephone number of A9 with which conference facility was connected was not mentioned in the register. He also conceded that the printed receipts of telephone calls made were not handed over to the police, explaining that the same were handed over to the customer for claiming the bill amount. According to PW10, there was no separate account maintained respecting A9. He also conceded that MTNL bills were not handed over to police. He denied that no such calls as depicted in the register were made by A9.
75. The register maintained by the STD booth in regular course of business cannot be doubted. When the entries were made, PW5 and PW10 had no reason to falsely note entries respecting the phones calls through conference facility taken by A9. The witness has given due explanation about why the original receipts generated by STD SC No. 06/2010 State Vs. Trilok Chand Bansal Page 33 of 70 system were not made available. Since the conference facility would involve calling the desired phone number(s) from the end of A9, the person operating the STD booth would naturally depend on the particulars as seen from the display. Since the facility was availed of by A9, the identity of the person dialing from his shop would be a matter of special knowledge vesting in him. In absence of any other theory coming from him, it has to be inferred that A9 would be the said person.
76.PW12 has testified that on 02.02.2000, A1 made a supplementary disclosure vide Ex. PW 12/L, indicating involvement of A9. As per evidence, A1 led the police to shop of Ghisi Lal & Co. at 1211, Maliwara. According to his statement, A9 was found present in the shop and from his possession mobile phone make panasonic (Ex. PW
22) and one slip of "HAWALA" transaction Ex. P21 were recovered and seized vide memo Ex. PW 12/P. The mobile phone Ex. P20 is shown by the evidence to contain the chip of mobile no. 9811107805. PW12 deposed that A9, upon interrogation, made disclosure statement which was recorded vide Ex.PW 12/M and he was arrested after personal search vide memo Ex. PWE 12/N.
77.During crossexamination, PW12 conceded that he did not have any document to show that mobile phone (P20) was owned by A9. He explained that police had doubted that Ex. P21 was used as "HAWALA" slip because number of a currency note was mentioned on it. He stated that he knew that number mentioned on the slip was SC No. 06/2010 State Vs. Trilok Chand Bansal Page 34 of 70 of a currency note because he had been dealing with cases of fake currency notes and he knew such numbers are usually of currency notes. He stated that "HAWALA" slip Ex. P21 was recovered before disclosure statement of A9 was recorded. He refuted that there was any delay in recording the disclosure statement, claiming it was done when the process of investigation was underway. It was suggested to him that A9 was not apprehended from his said shop or that nothing was recovered from A9. He denied these suggestions as incorrect.
78.PW22 has corroborated the evidence of PW12 in above regard. He also deposed to disclosure statement Ex. PW 12/L of A1 made on 02.02.2000 and the seizure memo Ex. PW 12/P whereby mobile phone (Ex. P20) and "HAWALA" slip (Ex. P21) are shown to have been recovered from A9, who was found present in his shop A1211, Maliwara, Chandni Chowk where A1 had led the police.
79.During crossexamination, PW22 stated that the supplementary disclosure was made by A1 around 2/2.30 PM on 02.02.2000 in the office of Special Cell from where, police party had set out for Maliwara, Chandni Chowk with A1 in custody, at about 4/4.30 PM so as to reach the shop of A9 at about 5 PM. PW22 reiterated during his crossexamination that when the police party arrived, A9 with one or two of his employees was present in the shop. He stated that the seizure were made after formal arrest of A9. He explained that in the "Hawala" slip name of a person, number of the note and some amount in figure was written. The particulars were written on the back SC No. 06/2010 State Vs. Trilok Chand Bansal Page 35 of 70 of payinslip. He also stated that since he had been dealing with "Hawala" cases, he presumed that these notings were in reference to some currency note or bank.
80.Both PW12 and PW22 have reiterated in their respective statements in this context that this fact was also disclosed by A9. PW 22 conceded that no inquiry was made from RBI or any other authority as to whether series of number written on the slip belongs to any currency note or bank note. He could not tell the name of any employee of A9 who may have been found present. He conceded that no public witness had joined in the investigation, his explanation being that no one had agreed to do so. It was suggested to him that employee of A9 was not cited as a witness, because the "Hawala" slip and mobile phone had not been recovered or seized from A9. PW22 denied this reasoning as incorrect. He conceded that specimen handwriting of A9 was not taken for comparison with the handwriting of "Hawala" slip.
81.Before examining the effect of evidence to above effect, it is essential to take note of the evidence of DW1. In his additional statement under Section 313 Cr.P.C. recorded on 24.04.2010, A9 while denying the evidence regarding the aforementioned seizure on 02.02.2000, pleaded ignorance about the proceedings against other accused persons and also about the supplementary statement attributed to A1. A9, in the said statement, has claimed that he was not present at the shop and he had come there on being informed by SC No. 06/2010 State Vs. Trilok Chand Bansal Page 36 of 70 his employee about the police having come to the shop, further stating that he was taken directly to the office of Special Cell without any recovery being made from him or the shop.
82.DW1 Anil Kumar Sharma is the employee of A9. He deposed that on 02.02.2000, the police had come to the shop at a time when he was present. He stated that the police officials had inquired about A9 and on their asking, he had called A9 from his house. He stated further that the shop was searched by the police officials in the presence of A 9 but nothing was recovered. He also stated that the police had obtained his signatures on some papers and had taken away accused with them.
83. DW1, during crossexamination by the Addl. PP, stated that police had come to the shop at about 45PM. He had not noticed any other public person accompanying the police. He denied the suggestion that at the time of arrival of the police, A9 was present in the shop. He admitted his signatures on the arrest memo Ex. PW 22/A. He conceded that he had signed this document at the shop. It was suggested to him that one mobile phone and "HAWALA" slip had been recovered from the possession of A9. He explained at this stage that when police was conducting search and doing the writing work, he was away from the police at a distance of 45 meters. He conceded that the accused was interrogated by the police. He denied the suggestion that he had invented a false story about he having gone and called the accused to the shop.
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84.The Ld. Defence Counsel has submitted that it is the burden of the prosecution to prove its case on its own steam and the gaps cannot be allowed to be filled up from the weakness of the defence or from the lines followed in cross examination of the witnesses and further that this procedure is consistent with other provisions of the Code of Criminal Procedure, particularly Section 313 and 315 Cr.P.C. which protect the accused against testimonial compulsion, which is a fundamental right under Article 20(3) of the Constitution of India. In making this submission, the counsel relied on Koli Trikam Jivraj Vs State of Gujarat AIR 1969 Gujrat 69; Nandini Satpathy Vs P.L.Dani (1978) 2 SCC 424 and Raman Lal Bhogi Lal Vs D.K.Guha (1973) 1 SCC 696. There can be no quarrel with the proposition of law advanced by the Ld. Counsel on the strength of the said authoritative pronouncements.
85.It was submitted by the Ld. Counsel for the accused that any statement made by an accused or suspect to the police in its custody or in its presence is hit by the provisions of Sections 24 and 25 of Evidence Act, unless it is admissible for the limited purposes of Section 27. He sought to develop this argument further by submitting that a document or article seized being not pursuant to disclosure by an accused is an inadmissible piece of evidence. He placed reliance on Pulukuri Kottaya Vs Emperor AIR (34) 1947 Privy Council 67; Prabhoo Vs. State of UP AIR 1963 SC 1113; Aloke Nath Dutta Vs SC No. 06/2010 State Vs. Trilok Chand Bansal Page 38 of 70 State of West Bengal (2007) 12 SCC 230 and In Re: Adham 1992 CrLJ 2102.
86.It is well settled law that a statement made to the police by an accused person is bound to be ignored, if it is sought to be used as incriminating evidence. The provisions of Sections 24 to 26 of the Evidence Act form a scheme of law, which is essentially meant to protect the fundamental rights against testimonial compulsion. Section 27 of the Evidence Act constitutes an exception and permits so much of the information received from a person accused of an offence, while being in the custody of police officer, to be proved as relates distinctly to a fact discovered in consequence of such information.
87.In above context, the counsel referred at length to following observations in the case of Kottaya (supra): "Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that" I will produce a knife concealed in the roof of my house" does not lead to discovery of a knife; knives were discovered many year ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added "with which I stabbed A" these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant".
88.The law laid down in Kotayya holds good till date. It is undoubtedly the law that the statement of the accused only to the SC No. 06/2010 State Vs. Trilok Chand Bansal Page 39 of 70 extent it leads to discovery of a fact which is to be treated as admissible and rest of the statement allegedly disclosed is to be discarded. The evidence has been examined in light of the said law. But then there is no basis to the arguments that an object or document seized without there being any disclosure by the accused is inadmissible. It is not the requirement of the law that before an evidence seized by the police, there must always be a disclosure by the accused leading to the said seizure.
89.The defence counsel argued that the disclosure Ex PW12/L attributed to A1 is suspect and must be ignored because it is shown to have been made on 02.02.2000, nine days after the arrest of said accused, there being no reference respecting connection with A9 in any of the earlier two disclosure statements of the said accused and further because A1 had not signed the said disclosure Ex PW12/L and thus, it was not a document, which had been admitted by its maker.
90.I do not find any substance in the arguments. The signature or admission of A1 was not necessary. The document has been proved by a police witness in whose presence the said disclosure was made. The fact that there was no reference to A9 in any of the earlier two disclosure statements of A1 after his arrest 24.01.2000 is also of no consequence. It is not the first case, where piecemeal disclosures are shown to have been made. It has to be borne in mind that A1, a Pakistani National, had been coming to India illegally, rather too frequently. His arrests, prosecution and even conviction on earlier SC No. 06/2010 State Vs. Trilok Chand Bansal Page 40 of 70 occasions did not have any impact. He thus, appears to be a hard nut and it may have taken some time for the interrogators to bring him around to spill the entire can of beans. It must, however, be added that disclosure of A1 describing the role of A9 by itself cannot be used against either of the said two persons. The case against A9 gets connected with that against A1 on the basis of facts discovered in the follow up in the form of seizures made from the former and not on his role as described by the latter.
91.The defence counsel then argued that the alleged recovery of mobile phone (Ex P20) and the document described as "HAWALA" slip (Ex P21) is suspect because the provisions of Section 100(4) Cr.P.C. have been flouted. In this context, the counsel referred to the provision contained in section 100 pertaining to the search of closed places by the police, which is part of the general provisions relating to searches as included in chapter VII pertaining to "processes to compel the production of things". Subsection (4) of section 100 enjoins upon the police officer about to make a search under the said chapter to call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and for these purposes to issue an order in writing to them or any of them so to do.
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92.The argument of the defence is that the witnesses for the prosecution who have spoken about the search leading to the seizures from the shop of A9 admittedly did not join any independent local inhabitant in the said search or seizure proceedings. Reference is made to the evidence of PW22 to argue that his claim about refusal of the two persons at the shop to join is a blatant lie because DW1 was very much present and there was no question of he refusing to join, in as much as he is a signatory to the arrest document respecting A9. The counsel submitted that PW22 was not being truthful when he expressed lack of memory respecting the identity of the witness who had refused to join, in the face of the fact that DW1, to his knowledge was present, his signatures having been taken on the arrest document. The counsel submitted that the presence of DW1 having been noted by calling him upon to be a witness to the arrest, for the sake of compliance with the directions of the Hon'ble Supreme Court in D.K. Basu Vs. State of West Bengal (1997) 1 SCC 416, the police officials cannot be allowed to come with altogether different theory respecting availability of independent witnesses.
93.I am not impressed with the arguments for the simple reason DW1 being employee of the accused could not have qualified to be taken as an independent inhabitant of the locality. Being an employee of the person suspected, his independence could not be assumed.
94.In above context, one also needs to remind oneself about the settled law that the courts have to judge the evidence on the test of basic SC No. 06/2010 State Vs. Trilok Chand Bansal Page 42 of 70 human probabilities. The evidence of police officials cannot be branded as highly interested. Such presumption runs counter to the principle that public servants must be presumed to act honestly, conscientiously and that their evidence has to be assessed on its intrinsic worth (AIR 1978 SC 1971).
95.It may be added here that recoveries in similar circumstances where the recovery Inspector had spoken about nonavailability of independent witnesses or even where the independent witnesses who were joined would not support, have been accepted as good evidence in a catena of authoritative pronouncements, provided the evidence of such police officer is otherwise found worthy of reliance [Ajaib Singh Versus State 1997 IX Apex Decision (SC) 362; Modan Singh Versus State AIR 1978 SC 1511; Omvati Versus State 1990 Crl.L.J. 304 (Delhi); Sunil Kumar Versus State 1990 Crl.L.J. 414 (Delhi); Akmal Ahmed Versus State Judgement Today 1999 (2) SC 388 and Mohd. Aslam Versus State Judgement Today 2000 (8) SC 104 to mention a few.]
96.In State Versus Sunil 88 (2000) DLT 630 (SC), it was observed that document prepared by IO contemporaneous with the recovery need not necessarily be attested by independent witnesses and that mere absence of independent witnesses when the investigating officer recorded the statement of the accused leading to recovery of incriminating material pursuant to such statement was not a sufficient SC No. 06/2010 State Vs. Trilok Chand Bansal Page 43 of 70 ground to discard the evidence under Section 27 of Evidence Act. Hon'ble Court observed thus:
"it is archaic notion that actions of police officers should be approached with initial distrust - Courts cannot proceed with presumption that police records are untrustworthy - as a proposition of law presumption should be the other way round."
97.It is true that generally, the police officers are expected to take precaution by joining independent witnesses of the locality. Seen against such general practice, it does appear odd as to why the recovery officer had not joined independent public witnesses. But then, only on this default the seizure does not become illegal. Further, even if it is argued that the search and seizure were illegal, the observations of Hon'ble Supreme Court in Dr. Pratap Singh Versus Director of Enforcement (1985) 3 SCC 72 provide the answer, viz., "illegality of the search does not vitiate the evidence collected during such illegal search."
98.It is not a correct submission of the defence that the evidence of DW1 to the effect that no recovery had been made from the shop of A9 has remained "unchallenged testimony". DW1 was subjected to crossexamination by the Addl. Public Prosecutor and rather that remaining unchallenged, his version about no recovery having been affected was shown to be in poor light and rendered doubtful when the witness conceded that the police had carried out the search and done SC No. 06/2010 State Vs. Trilok Chand Bansal Page 44 of 70 some writing work but he had kept himself away at some distance. This is neither here nor there as far as the defence is concerned.
99.It was then argued by the defence counsel that SI Govind Sharma another witness of the seizure has not been produced and this should lead to adverse inference under section 114(e) of Evidence Act. It is well settled law that it is the quality of evidence which is to be seen and not quantity. Two witnesses of the recovery have been examined and they are shown to have withstood the test of crossexamination. Examination of SI Govind Sharma would have only added to the number of witnesses. In these circumstances, I do not find it just or proper to draw an adverse inference on this ground.
100.In the same context, it is also submitted by the defence that the evidence of PW6 having indicated that the mobile number of the mobile phone instrument shown recovered having been taken against a cash card, it cannot be said with certainty that it belonged to A9.
101.I am afraid the argument is too simplistic. The mobile phone instrument is shown to have been recovered from the possession of A
9. In this view, the question of the person in whose name it was taken from the cellular company becomes irrelevant. The fact remains that it was in use and possession of A9 when seized. Even otherwise, it being a matter within the special knowledge of the accused it was his burden to show as to whom it belonged and as to how it had come in his control.
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102.On the document (Ex. P21), the submission of the defence counsel is that it appears to have been "executed in the year 1996" and that it seemingly has no connection whatsoever with the activities alleged here. The document Ex. P21 is actually a slip of paper on one side of which there is a photo impression of deposit slip of a bank account pertaining to a transaction of the year 1996. The Ld. Addl. PP clarified that it is not this side of the impression on the document which is incriminating. It is actually what is written on the other side of the said photocopy which is described as "HAWALA" slip.
103.Besides the evidence adduced through PW5 and PW10 respecting details of calls made by A9 using a conference facility provided by STD booth of the said witnesses, the prosecution has also relied on the evidence of PW6 and PW9 to prove the close net working between some of the accused persons communicating on phone with each other or with certain elements in Pakistan. As mentioned earlier, A1 at the time of his arrest was found carrying mobile phone no. 9810171409. The evidence of PW12 and PW22 has proved that A9 at the time of his arrest was carrying a mobile phone with number 9811107805. The landline numbers available to and in use of A3, A4, A5 and A7 have been noticed earlier. In addition to the said mobile phone, A9 was also using the conference facility arranged through STD booth of PW5 and PW10. The particulars of calls made through conference facility provided by STD booth are indicated in the entries Ex. PW 5/A and Ex. PW 5/C. The SC No. 06/2010 State Vs. Trilok Chand Bansal Page 46 of 70 call details in respect of mobile phone in use of A1 have been proved by PW6 Smt. Seema Sharma, Executive (Legal) of Bharti Cellular Ltd, the service provider, vide document Ex. PW 6/A running into 21 sheets. The call details of mobile phone Ex. P20 seized from A9 have been proved vide Ex. PW 9/A by PW9 Major A.R.Satish, Executive of Sterling Cellular Ltd., the service provider.
104.During crossexamination of PW6, it was brought out that conversations are recorded by the service provider only upon a specific request. The witness did not have any idea if any conversation of any call (reflected in the document containing call details proved by him) were recorded or not. This is of no consequence either way in as much as it has never been the case of prosecution that the phone calls in question were subjected to interception or recording.
105.During crossexamination of PW9, the witness stated that he was unable to say as to who was the purchaser or user of the cash card with which said mobile phone was being used. He was questioned about calls made at 0146 hours on 15.01.2000 and at 1936 hours on 21.1.2000 but he was unable to specify the user of the phone on the other end of the said calls. Since it has been proved that the phone in question was in use of A9, name of purchaser or recorded user pales into insignificant.
106.On the basis of evidence placed before him, my ld. predecessor in his judgment dated 18.04.2007 found that A1 had connected with certain elements in Pakistan 61 times during the period to which Ex. PW 6/A pertains. He also found A1 having been in touch with A3, SC No. 06/2010 State Vs. Trilok Chand Bansal Page 47 of 70 A4, A6 and A7, 76 times, 50 times, 18 times and at least once respectively, during the said period.
107.The telephone details Ex. PW 5/A show that A9 had connected with his contacts in Pakistan 41 times during the period 13.01.2000 to 24.01.2000. The call details Ex. PW 6/A show that A1 and A9 had been in telephonic contact with each other through their respective mobile phones, as many as 16 times during the period 12.12.99 to 23.01.2000 which substantially overlaps with the period when A9 was in telephonic touch with certain elements in Pakistan and again the period when A9 was in regular contact with A3, A4, A5 and A
7.
108.On careful perusal of the evidence on record, I do not find any reason why it should be disbelieved. Small contradictions by themselves are no reason to throw the case out. It has been held time and again that discrepancies do not necessarily demolish the testimony. Proof of guilt can be sustained despite little infirmities [Narotam Singh Vs. State 1978 Cr.L.J. 1612(SC)]. No undue importance can be attached to such discrepancies if they do not go to the root of the matter and do not shake the basic version of witnesses [Lallan Vs. State 1990 Cr,.L.J. 463]. It was ruled in Ramni Vs. State, [Judgment Today 1999(6) SC 247)] that all discrepancies are not capable of affecting the credibility of witnesses. Similarly, all inconsistent statements are not sufficient to impair the credit of a witness.
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109.Observations of Hon'ble Supreme Court in 1985 Crl. L.J. 1173 can also be fruitfully referred to in this context. The evidence of an eye witness cannot be treated as one of the three legs of a tripod so as to conclude that it must collapse if one or the other leg collapses.
110.In the case of Sukhdev Yadav & ors. Vs. State of Bihar (2001) 89 (SCC) 86) it was held by Hon'ble Supreme Court that once the trustworthiness of evidence stated in a case stands satisfied, the court should not hesitate in accepting the same. If the evidence in its entirety appears to be trustworthy, it cannot be discarded merely on the ground of presence of minor variations in evidence. Relying upon an earlier decision in Leela Ram Vs. State of Haryana (1999) 9 SCC 525, it was observed that there are bound to be some discrepancies between the narration of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishments or variations should not render the evidence of eye witnesses unbelievable. Trivial discrepancies ought not to obliterate otherwise acceptable evidence. Relying upon an earlier decision in Ramani Vs. State of M.P. (supra), it was also observed that when an eye witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make SC No. 06/2010 State Vs. Trilok Chand Bansal Page 49 of 70 his testimony totally nondiscrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident either as between the evidence of two witnesses or as between two statements of the same witnesses is an unrealistic approach for judicial scrutiny. It was observed that it is a common practice in trial courts to make out contradictions from the previous statement of a witness used for confronting him during crossexamination. Merely because there is inconsistency in evidence it is not sufficient to impair the credit of the witness. No doubt section 155 of the Evidence Act provides scope for impeachment of the credit of a witness by proof of an inconsistent former statement. But a reading of the section would indicate that all inconsistent statements are not sufficient to impeach the credit of the witness.
111.As far as A9 is concerned, this case is based mainly on circumstantial evidence.
112.Hon'ble Supreme Court in case of Hanumat Govind Nagacunda Vs. State of MP AIR 1952 SC 343 observed that it needs to be remembered that in case where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilty is to be drawn should, in the first instance, be fully established and all the facts so established should be consistent only with the hypothesis of the SC No. 06/2010 State Vs. Trilok Chand Bansal Page 50 of 70 guilt of the accused and should be of a conclusive nature and tendency and further that they should be such as to exclude every hypothesis but the one proposed to be proved. It has been authoritatively held in various Judgments of Hon'ble Supreme Court including Sharda B. Sarda Vs. State of Maharashtra AIR 1984 SC 1622, C. Channy Reddy Vs. State of AP (1996) 10 SCC 193, State of Veera Reddy Vs. State of AP AIR 1990 SC 79, Kali Ram Vs. State of Rajasthan 1977 SCC(Cri) 250 and Balvinder Singh Vs State of Punjab 1996(1) CCC 5 (SC) that the conditions precedent for conviction to be based on circumstantial evidence which must be fully established are:
(a) The circumstances from which the conclusion of guilt is to be drawn should be fully, cogently and firmly established, as distinguished from 'may be' established;
(b) the facts so established should be consistent only with the hypothesis of the guilty of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(c) the circumstances should be of a conclusive and definite nature and tendency unerringly pointing towards the guilt of the accused;
(d) they should exclude every possible hypothesis except the one to be proved; and
(e) the circumstances, taken cumulatively, should form a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
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113. The above law has been retraced and chronicled in judgment of Hon'ble High Court reported as State Vs. Shaquila 88(2000) Delhi Law times 219(DB).
114.In above facts and circumstances, I find no reasons to disbelieve the prosecution evidence. It is worthy of reliance and, therefore, the following facts and circumstances are found proved beyond the pale of all doubts through cogent evidence:
(i) A1, a Pakistani National, with history of earlier conviction under section 14 Foreigners Act, was found present on Indian soil on 24.01.2000, now living with A2, an Indian National, daughter of A6, having married her and having set up residence in a tenanted accommodation in the area of Karol Bagh, New Delhi, arranged by A3;
(ii) A3 had also provided mobility to A1 by lending to him his scooter for use;
(iii) A1, when apprehended around 1.30 PM on 24.01.2000 in the area of Karol Bagh, New Delhi was found carrying, amongst others, explosive substances (two detonators, two pencil timers, one hand grenade and 2.9 kilogram of RDX) and hundred counterfeit currency notes each of the denomination of Rs. 500/;
(iv) In the wake of disclosures made by A1: SC No. 06/2010 State Vs. Trilok Chand Bansal Page 52 of 70
(a) A2 was found having in her possession 16 counterfeit currency notes each of the denomination of Rs. 500/;
(b) From the house in Chhatta Lal Mian, Chandni Mahal, also in possession / control of A1 and A2, and earlier used as their residence, 20 packets of hundred counterfeit currency notes each of the denomination of Rs. 100/ and 6 packets of hundred counterfeit currency notes each of the denomination of Rs. 500/ were recovered;
(c) A6 was found having in his possession 48 counterfeit currency notes of the denomination of Rs. 100/ each and 10 counterfeit currency notes of the denomination of Rs. 500/ each;
(d) A3 was found having in his possession 29 counterfeit currency notes of the denomination of Rs. 500/ each;
(e) A4 was found having in his possession 25 counterfeit currency notes of the denomination of Rs. 500/ each;
(f) A5 was found having in his possession 14 counterfeit currency notes of the denomination of Rs. 500/ each;
(v) In the wake of disclosures made by A3:
(a) A7 was found having in her possession 3 packets of 100 counterfeit currency notes of the denomination of Rs. 500/ each and five packets of 100 cournterfeit currency notes of the denomination of Rs. 100/ each; and SC No. 06/2010 State Vs. Trilok Chand Bansal Page 53 of 70
(b) A8 was found having in his possession 52 counterfeit currency notes of the denomination of Rs. 500/ each
(vi) A3 was involved in encouraging others to join in the illicit business of trafficking in counterfeit Indian currency;
(vii) A9 is in control of premises of shop no. A1211, Maliwara, Chandni Chowk, Delhi from where he does business in the name and style of Ghisi Lal & Co., stated to the dealing in gems;
(viii) A9 had taken a conference facility from an STD booth near his shop, with the help of which he was in regular contact with a certain number (0092427669617) in Pakistan, having connected it 41 times for telephonic conversation during the period 13.01.2000 to 24.01.2000;
(ix) A1 was having available to him and in his use a mobile phone instrument which was having SIM card of phone number 9810171409;
(x) A9 was having available to him and in his use a mobile phone instrument (Ex.P20) which was having SIM card of phone number 9811107805;
(xi) A1 with the help of his mobile phone was in constant and regular telephonic contact, during the period 12.12.1999 to 23.01.2000:
(a) with certain elements in Pakistan, contacting as many as 61 times;
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(b) with A3, as many as 76 times;
(c) with A4, as many as 50 times;
(d) with A6, as many as 18 times;
(e) with A7, at least once; and
(f) with A9, as many as 16 times;
(xii) Pursuant to disclosure made by A1, police reached the shop of A9 on 02.02.2000 when he was found having in his possession, the mobile phone (Ex. P20), a document (Ex. P
21) which had some coded words and figures written thereon which was taken in possession on being suspected to be a "HAWALA" slip and respecting which he would not tender any explanation whatsoever.
115.It has been argued that the mere fact that A1 mentioned the name of A9 in his disclosure statement cannot be a proof of the latter being member of a criminal conspiracy, as the disclosure statement of the accused to police cannot be used for reaching such conclusions even for the limited purpose of Section 27 of Evidence Act. It only needs to be said here that conclusions about complicity of A9 in the criminal conspiracy are not to be reached on the basis of his role delineated in the disclosure attributed to A1, but on the facts and circumstances which have been proved through admissible evidence.
116.Relying upon State of Gujarat v. Mohd. Atik 1998 Cri.L.J. 2251, it was argued that a statement made by an accused after his arrest cannot fall within the ambit of Section 10 of Evidence Act. The SC No. 06/2010 State Vs. Trilok Chand Bansal Page 55 of 70 Ld. counsel for the accused referred mainly to the following observations of Hon'ble Supreme Court in the said judgment: "It is wellnigh settled that Section 10 of the Evidence Act is founded on the principle of law of agency by rendering the statement or act of one conspirator binding on the other if it was said during subsistence of the common intention as between the conspirators. If so, once the common intention ceased to exist any statement made by a former conspirator thereafter cannot be regarded as one made "in reference to their common intention." In other words, a postarrest statement made to a police officer, whether it is a confession or otherwise, touching his involvement in the conspiracy, would not fall within the ambit of Section 10 of the Evidence Act."
117. All the persons who stood this trial jointly, including A9, have faced the charge of criminal conspiracy under Section 120B IPC. The prosecution projected all the said 9 persons, including A9, as co conspirators. In this context, Section 10 of the Evidence Act is relevant. It reads as under: "10. Things said or done by conspirator in reference to common design. Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well as for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it. "
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118.The submissions of the defence counsel in the context of Section 10 of Evidence Act and with reference to the judgment in the case of Mohd. Atik (Supra) is based on misconstruction of the case of the prosecution. The prosecution has not requested for the disclosures made by A1, or for that matter even the one attributed to A9, to be used against the latter as material referable to Section 10 of Evidence Act. It is the acts of commission on the part of all the coaccused persons, including A1 to A8, which are proposed to be considered so as to appreciate the role of A9, in the manner permissible under Section 10 of Evidence Act.
119.It was argued by the defence counsel that no witness has deposed having personally witnessed for a fact that the accused had made calls to Pakistan and, therefore, it cannot be concluded that he in fact made any call to Pakistan to speak on phone with anyone in particular, including A1.
120.It may be mentioned in above context that the prosecution never alleged that A9 had contacted A1 on phone at a time when the latter may have been in Pakistan. The contacts between A9 and A1 through their respective mobile phones are shown to have occurred during the period when the latter had become active again having returned to India. When A9 was contacting elements in Pakistan, A 1 on the other hand was also similarly contacting elements in Pakistan. The call details proved by the owner of the STD booth are sufficient to SC No. 06/2010 State Vs. Trilok Chand Bansal Page 57 of 70 demonstrate that the telephonic contacts by A9 were in Pakistan. The country code "092" prefix to the telephone numbers is sufficient in this regard. Same applies to the telephonic contact made through mobile phone instruments both by A9 and A1. The fact that A1 is a Pakistani National and was found on Indian soil with explosive materials and counterfeit Indian currency adds colour to his calls in Pakistan. His constant telephonic contacts with A9 during the same period and the telephonic contacts by the latter similarly with elements in Pakistan carry that shade into the role of A9.
121.It is the argument of the defence that it not having been identified as to who was the person with whom A9 was talking on forty one occasions through telephone calls in Pakistan, it cannot be assumed that he was party to a criminal conspiracy involving A1 or other accused persons. The counsel submitted this was akin to A9 being accused of conspiracy with a "phantom conspirator". He submitted that A9 is admittedly a dealer in gems and, therefore, the calls in question could, for all one knows, be innocuous ones. He submitted these calls could have been treated as incriminating if they had been subjected to interception or taperecording. Reliance in support of this argument is placed on the judgments in State Versus Navjot Sandhu (2005) 11 SCC 600 and Chandraswami Versus CBI, ILR (2000) 1 Delhi 131.
122.The facts and circumstances proved here are distinguishable. The telephone calls made by A9 on forty one occasions to Pakistan are SC No. 06/2010 State Vs. Trilok Chand Bansal Page 58 of 70 also to be seen in light of his regular contact through mobile phones with A1, during the same period as the latter was illegally present and operating from Indian soil trafficking in counterfeit currency notes, as part of a network in which A2 to A8 were also equally active. In a case based on circumstantial evidence, these telephonic contacts required some explanation from A9 which is not forthcoming. It is not his case that he was contacting A1 on account of social relations or obligations. It is not his case either that A1 was transacting with him respecting the business of gems. He has not come with any proof of being in business connection with the persons with whom he was in regular telephonic contact in Pakistan. The timing of these calls in fact leads to the irresistible conclusion that his contacts with Pakistan on one hand and with A1 on the other were on account of the activities for which A1 had entered India surreptiously.
123.Hon'ble Supreme Court in State Vs. Nalini, AIR 1999 SC 2640 observed as under on the subject of conspiracy:
"In reaching the stage of meeting of minds, two or more persons share information about doing an illegal act or a legal act by illegal means. This is the first stage where each is said to have knowledge of a plan for committing an illegal act or a legal act by illegal means. Among those sharing the information, some or all may form an intention to do an illegal act or a legal act by illegal means. Those who do form the requisite intention would be parties to the agreement and would be conspirators....".SC No. 06/2010 State Vs. Trilok Chand Bansal Page 59 of 70
124. In Kehar Singh Vs. State AIR, 1988 SC, Hon'ble Supreme court observed that:
"It is however essential that the offence of conspiracy requires some kind of physical manifestation of agreement. The express agreement, however need not be proved nor is it necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient."
125. The defence counsel submitted, with reference to para 66 of the judgment in the case of Kehar Singh (supra), that mere acquaintance with A1 should not be treated as a proof of A9 being party to the criminal conspiracy. This argument is nothing but the argument submitted with reference to the telephonic conversation in a new package. It bears repetition to say here that given the background of A1, he being a Pakistani National with history of earlier arrest under Foreigner Act and conviction thereunder, his involvements during fresh unlawful entry into and stay in India covering a gamut of anti India activities which include possession of explosive substances, possession of counterfeit Indian currency and circulation of counterfeit Indian currency through a wide network that would comprise A2 to A8, it is not an ordinary case of mere acquaintance between two individuals. The evidence has shown not merely by regular telephonic contact between A1 and A9, but also each of them being in constant touch with certain elements in Pakistan around the same time, linking each of them to the controllers of A1 in that country and A9 with the SC No. 06/2010 State Vs. Trilok Chand Bansal Page 60 of 70 activities of A1 in India. It may be again said in this context that A9 has not come with any explanation whatsoever for these contacts so that his plea of the same being innocuous contacts could be appreciated.
126.It is well settled that the criminal conspiracy may come into existence and may persist and will persist so long as the persons constituting the conspiracy remain in an agreement and so long as, they are acting in accord, in furtherance of the object for which they had entered into the agreement. The agreement is the gist of the offense of criminal conspiracy, but in order to constitute a single general conspiracy, there must be a common design and a common intention of all to work in furtherance of the common design. Each conspirator might be playing a separate part in one integrated and united effort to achieve the common purpose. Each one would know the part that he is expected to play in a general conspiracy though he might not know all its secrets or the means by which the common purpose was to be accomplished. The evil scheme might have been promoted by a few, some might drop out and some might join at a later stage, but the conspiracy might continue until broken up.
127.A general conspiracy has to be distinguished from a number of separate conspiracies having a similar general purpose. Where different group of persons cooperate towards their separate ends without any privity with each other, each combination would constitute a separate conspiracy. A conspiracy has been equated with a SC No. 06/2010 State Vs. Trilok Chand Bansal Page 61 of 70 running stream or a running train. Some persons join it at the beginning while others might join it later. But they are all parties to the same general conspiracy, leaving aside certain other unrelated conspiracies or separate conspiracies among some of the members who cooperate towards their separate ends. Reference in this context can be made fruitfully to Abul Rehman and others V. Emperor (AIR 1935 Calcutta); Mohd. Hussain Umar Kochra V. K.S. Dalipsinghji (AIR 1970 SC 45); UOI Vs. Prafulla Kumar Samal (1979) 3 SCC 4; and State Vs. Riaz Ahmad and others (Criminal Appeal No. 27 of 1970 decided on 20.4.1971 by Hon'ble High Court of Delhi).
128.In State Vs. V.C. Shukla AIR 1980 SC 1382, it was observed that in order to prove a criminal conspiracy under Section 120B of IPC, there must be direct or circumstantial evidence to show that there was an agreement between two or more persons to commit an offence, and this required that there must be a meeting of minds resulting in an ultimate decision taken by the conspirators regarding the commission of the offense, and while in most cases it would be difficult to get direct evidence of an agreement to conspire, a conspiracy could be inferred from the circumstances giving rise to a conclusive or irresistible inference of an agreement. Undoubtedly, the burden of proving the facts or circumstances beyond all reasonable doubts remains that of the prosecution.
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129. The defence argued in the context of the document Ex. P21 that the description of the document as HAWALA slip is based on presumptions and conjectures. In this context, reference was made to the evidence of PW12 and PW22 who took it as HAWALA slip because some figure appearing to be the serial number of a currency note appeared thereon.
130.Undoubtedly, nothing beyond the said slip of paper has been recovered. But then, one has to remember the background information which the investigating officers state to have obtained from A1 respecting the role of A9. Seen against the said backdrop, the slip Ex. P21 did appear to be a slip on which some information had been recorded in a manner as could not be easily deciphered. The figure does appear to be similar to the serial number generally noticed on currency notes.
131.Given the backdrop against which this document had been recovered, A9 owed some explanation in such regard. After all, it was a document found in his possession. He had a special knowledge about its relevance, import and meaning. Instead of explaining the meaning of the document, he has chosen to come with a bald denial. In these circumstances, assumption that the document is innocuous would be too naïve or myopic.
132.On taking into consideration the facts and circumstances which have been proved against A9, it is clear that he was part and parcel of the network that was operating with A1 as its pivot. It may be that A SC No. 06/2010 State Vs. Trilok Chand Bansal Page 63 of 70 9 was not in direct contact with the other members of the network. But, this only means the case is one of a conspiracy within a larger conspiracy. His involvement and close nexus with A1 is writ large on the record in as much as he and A1 were in regular contact with elements in Pakistan and also with each other, the natural corollary of which is that they were together in the design with which controllers of A1 had sent him from Pakistan into India.
133.It is trite that criminal conspiracies are hatched in secrecy and executed in stealth. In such cases, it is too much to expect direct evidence of conspiracy. The meeting of minds can be gathered from the attending circumstances. The design of A1 is clear in that he was found red handed with explosive materials and counterfeit currency notes. Proof of he being the source of counterfeit currency notes and their circulation with the active assistance and connivance of A2 to A8 has been brought beyond the pale of any doubt. Each player was in regular contact with A1. This is the pattern followed even in the context of A9. The fact that A1 disclosed about the involvement of A9 is significant in that it was on the basis of this lead that the investigating agency reached the door of A9.
134.Seen against this background, discovery of the fact of A9 having himself been in touch with elements in Pakistan and also with A1 during the same period and having in his possession the document Ex. P21 which does not answer any description other than what has been attributed to it by the police, namely, that of a memorandum of SC No. 06/2010 State Vs. Trilok Chand Bansal Page 64 of 70 HAWALA transaction, leads one to the irresistible conclusion that he was member of the criminal conspiracy of which A1 was the kingpin, the object essentially being to traffic illegally in counterfeit Indian currency notes.
135.In reaching the above conclusion, the acts of commission and omission on the part of the other members of the criminal conspiracy, i.e. A1 to A8 assume great significance. A9 could have shown that his contacts with A1 on one hand and with the persons at the other hand of the numerous telephone calls made to Pakistan during the corresponding period on the other, as indeed the document Ex. P21 had purposes other than the objects of the criminal conspiracy or the activities in which A1 to A8 were engaged at that time. Instead of doing this he has chosen the plea of total denial which is not believable. In this view, argument on his behalf that these telephonic contacts were connected with his business of gems has to be trashed.
136. The facts which have been established are found to be consistent only with the hypothesis of the guilt of the accused, they being not explainable on any other hypothesis. The circumstances proved read together and collectively are conclusive and definitive, without doubt pointing towards the guilt of the accused. The chain of circumstances is complete and inconsistent with the plea of innocence, indicating in all human probability the involvement of the accused in the criminal conspiracy.
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137. In above facts and circumstances, I have no hesitation in returning the finding that A9 Trilok Chand Bansal was party along with A1 Kamran Gauhar to a criminal conspiracy, the object of which was to commit illegal acts namely aiding and assisting in the transactions in the nature of trafficking in or in using as genuine forged or counterfeit Indian currency notes possessed by the latter and other co conspirators.
138.In the result, A9 Trilok Chand Bansal is held guilty and convicted for offence under Section 120B read with Sections 489B and 489C IPC.
Announced in open court on
This 16th day of October, 2010 ( R.K. Gauba)
Addl. Sessions Judge 1
Central, Delhi.
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IN THE COURT OF SH. R.K.GAUBA, ADDL. SESSIONS
JUDGE 01 (CENTRAL) DELHI
SC No. 06/2010 (Old Nos. 31/2000 & 95/05)
ID No.: 02401R0010292000 (Old) FIR No.: 29/2000
ID No.: 02401R0595822005 (Old) PS: Karol Bagh
ID No.: 02401R0080972010 (New) U/Sec : 489B/489C/
120B/121/121A/
122/123 IPC
State
Versus
Trilok Chand Bansal s/o Sh. Ghisi Lal
R/o DIII/23, Rajasthan Apartment
Pitampura, Delhi.
ORDER ON SENTENCE
(c) Vide judgment passed and pronounced on 16.10.2010, Trilok Chand Bansal was held guilty and convicted for the offence under Section 120B read with Sections 489 B and 489C IPC. It is now my duty to deal with him in the matter of punishment.
(d) I have heard Sh. R.K.Tanwar, Addl. PP for the State and Sh. Ashwin Vaish, the defence counsel appearing for the convict. While Addl. PP prayed for appropriate punishment in the facts and circumstances of the case, the defence counsel prayed for leniency on the grounds that similarly placed other accused persons who stood trial on SC No. 06/2010 State Vs. Trilok Chand Bansal Page 67 of 70 identical charge have been awarded imprisonment ranging from five to seven years; convict is 65 years old person with various ailments; convict has family including a mentally retarded daughter to support and that he has suffered this prosecution for over 10 years during the course of which he has remained in custody for a period of roughly three years.
(e) I have given my considered thoughts to the relevant contentions urged before me.
(f) The delay in conclusion of trial, the proceedings would show, is also for reasons attributable to the defence and, therefore, no advantage on that basis in the matter of punishment deserves to be extended. As regards parity with other persons convicted and dealt with by my learned predecessor in his order dated 28.04.2007, it has to be borne in mind that their role was essentially restricted to circulating the counterfeit currency notes to aid and assist the main accused Kamran Gauhar. In the case of convict Trilok Chand Bansal, there is the added factor that he was not only in criminal conspiracy with Kamran Gauhar but also with elements in Pakistan with whom he was in direct telephonic contect, at the same time when the acitivities of Karam Gauhar on Indian soil were being so controlled by his masters in Pakistan. In SC No. 06/2010 State Vs. Trilok Chand Bansal Page 68 of 70 these circumstances, I do not find any parity between convict Trilok Chand Bansal and other persons who were convicted along with Kamran Gauhar earlier.
(g) Convict Trilok Chand Bansal proclaims to be a respectable businessman dealing in Gems. He was running the said business from a premises in the heart of Delhi. The fact that under the cover of the said business, he was hobnobbing with enemy, to my mind renders him the enemy within, which is even more dangerous to the integrity and sovereignty of this country than external threats. In the given facts and circumstances, I find no scope for any leniency on the grounds submitted on his behalf.
(h) Trilok Chand Bansal has been convicted for offence under Section 120B IPC. Since object of the criminal conspiracy to which he was a party relates to offences under Section 489B and 489C IPC, punishment for offence under Section 120B IPC would be similar to the one abetted by such criminal conspiracy.
(i) In my considered view, sentence of rigorous imprisonment for a period of ten years with fine of Rs. One lakh only would meet the ends of justice in his case. I order accordingly. In case of default in payment of fine, he is directed to further undergo rigorous imprisonment for a period of one year. He shall be entitled to benefit of SC No. 06/2010 State Vs. Trilok Chand Bansal Page 69 of 70 setoff for the period already undergone in custody during investigation and trial of this case in terms of Section 428 Cr.P.C.
(j) Copy of the judgment and this order on sentence be supplied free of costs to the convict.
(k) He be sent to jail under appropriate warrant to serve the sentence.
(l) File be consigned to record room.
Announced in open court on
This 20th day of October, 2010 ( R.K. Gauba)
Addl. Sessions Judge 1
Central, Delhi.
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