Delhi District Court
By The Hon'Ble Supreme Court Of India In ... vs State Of on 22 April, 2013
IN THE COURT OF SH. SUDESH KUMAR
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE01, NEW DELHI
DISTRICT:
PATIALA HOUSE COURTS: DELHI
FIR NO.: 218 OF 2007
POLICE STATION: IGI AIRPORT
U/S: 420/468/471 & 12 PASSPORT ACT
IN THE MATTER OF
STATE
VS
PREM KUMAR & OTHERS
(i) Prem Kumar
S/o Mr. Gopi Krishan
R/o Mohalla Lal Diggi,
PS Rajghat, District Gorakhpur, UP
(ii) Abdul Aziz
S/o Mr. Jamaluddin Sheikh
R/o Village Nauka Tola, Thari Bhar,
PS Bishanpura, Kushi Nagar, UP
FIR NO.: 218 OF 2007
POLICE STATION: IGI AIRPORT
U/S: 420/468/471 & 12 PASSPORT ACT 1 of 10
Date of institution:14.09.2007
Date of reserving Judgement/Order:12.04.2013
Date of Pronouncement of Judgement/Order:22.04.2013
Brief statement of reasons for such decision :
1.As per prosecution story, the accused Abdul Aziz being a passenger entered into a conspiracy with co accused Prem Kumar being an agent to facilitate journey of Abdul Aziz by arranging forged ECNR (Emigration Clearance Not Required) stamp on his passport bearing no. E63882061 for unlawful consideration and in pursuance to that conspiracy, the accused Abdul Aziz produced the aforesaid passport before the clearing officer on 28.03.2007 at departure left wing of immigration for clearance. On scrutiny of the passport, it was found that the ECNR stamp and the signature of ECNR authority of RPO Lucknow affixed at page no. 5 of the aforesaid passport was forged.
On these allegations, the present case was registered against accused Abdul Aziz, he was arrested and his travel documents were taken into possession. On questioning, he revealed that the ECNR stamp and his journey was arranged by M/s Utsav Travels Pvt. Ltd. Near Cantt Police Station, Gorakhpur, UP. During investigation, the witnesses were examined and out of those witnesses, Mohd. Naeem deposed that air tickets and journey for Abdul Aziz was arranged by Prem Kumar, owner of M/s Utsav Travels Pvt. Ltd. Gorakhpur for Rs. 15,000/ each. At the instance of accused Abdul Aziz and Mohd. Naeem, Prem Kumar was arrested from the office of M/s Utsav Travels Pvt. Ltd., Gorakhpur, UP.
2. After investigations, charge sheet in the matter was filed against all accused for the offences u/s 420/468/471 & 12 Passport Act.
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3. It is also found that there are three other FIRs bearing FIR No. 125/07, FIR No. 118/07 and FIR No. 119/07, all pertaining to PS IGI Airport registered against accused Prem Kumar (being agent) for arranging forged ECNR stamps for different passengers pending trial in the Court alongwith the present case.
4. Charge for the offences U/s 120 B IPC, 420 r/w 120 B IPC and 471 r/w 120 B IPC was settled against both accused namely Abdul Aziz and Prem Kumar on 16.05.2008 by my Ld. Predecessor to which they pleaded not guilty and claimed trial.
5. During the trial, accused Abdul Aziz moved an application for entering into plea bargaining and he was convicted by the plea bargaining Court on 24.10.2010.
6. Thereafter, prosecution has examined total 7 witnesses out of 9 witnesses cited in the list of witnesses.
(i) PW 1 SAG Rajesh Kumar took only travel documents alongwith complaint to the police station and proved the seizure memo Ex. PW 1/A. During his cross examination, he admitted that documents were not in sealed condition and he does not have any knowledge about this case.
(ii) PW 2 Mr. Mohd. Naeem deposed that Abdul Aziz was his brother in law.
He deposed that Abdul Aziz was intending to go abroad and his elder brother Amin Ali had sent visa for Abdul Aziz from Muscat and he asked them to collect the tickets and immigration stamp on the passport from some travel agent. Then they went to Utsav Travels near PS Cantt, Gorakhpur, there accused Prem Kumar met them and they handed over the passport to him. On seeing the passport, he said that he would arrange the ticket and he further told that it requires immigration stamp also and he stated that it would cost Rs. 4500/ for immigration stamp and Rs. 9,500/ for ticket and assured that he would hand over the passport after arranging the immigration stamp and ticket within 10 days and advance payment of Rs. 5,000/ was given to him on his demand. After 10 days, he FIR NO.: 218 OF 2007 POLICE STATION: IGI AIRPORT U/S: 420/468/471 & 12 PASSPORT ACT 3 of 10 went to the office of Prem Kumar. He handed over the passport with stamp and assured that his flight will be cleared and it has been booked. At the time of taking the visa and passport from accused Prem Kumar, he handed over Rs. 9,000/ to him. He also assured that he would not face any difficulty and everything will be clear and he handed over the said passport and visa to Abdul Aziz at Delhi. He was told by Abdul Aziz that he has been apprehended on the ground that ECNR stamp was forged. He inquired the same from Prem Kumar. Subsequently, he came to know that Prem Kumar had arranged the forged ECNR stamp on the passport and he came to know that FIR has been registered against Abdul Aziz. He was taken on police remand. He alongwith the police went to the office of Prem Kumar who was found sitting in his office. Accused Prem Kumar was arrested in his presence vide arrest memo Ex. PW 2/A. The witness was not cross examined by accused Abdul Aziz despite opportunity for same being given.
During his cross examination by Ld. Defence Counsel for accused Prem Kumar, he stated that he met Prem Kumar for the first time in year 2007 and no receipt was given by accused Prem Kumar against the receipt of payment. He denied that no payment was given to accused Prem Kumar or that no passport was given to accused Prem Kumar or that visa and stamp were arranged from some other travel agent and not from Prem Kumar or that he is implicating falsely accused Prem Kumar to save the other travel agent.
(iii) PW 3 Ct. Bijender proved the arrest of Prem Kumar from his office Utsav Travels vide arrest memo Ex. PW 2/A and his personal search was conducted vide memo Ex. PW 3/A. The witness was not cross examined by accused Abdul Aziz despite opportunity for same being given.
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In his cross examination by Ld. Defence Counsel for accused Prem Kumar, he stated that they reached travel agency at about 1 PM. The raid was conducted in his office for about one hour and during that raid, Prem Kumar was arrested. He stated that IO might have seized the documents but he did not seize any document from the office of Prem Kumar. After raid, they reached Delhi. He denied that they did not conduct the raid at the office of Prem Kumar or that they completed all the proceedings while sitting at the PS Delhi.
(iv) PW 4 Mr. Sushil Bhalla, Superintendent, RPO Lucknow has proved the report of RPO, Lucknow vide Ex. PW 4/A and identified the signatures of Mr. N.K. Kaushik on this report. He categorically stated that the page no. 5 of the passport of the accused Abdul Aziz Ex. P 1 having the ECNR stamp with his signatures was totally forged and did not belong to him and the seal/ECNR stamp was also fake.
The witness was not cross examined by accused Abdul Aziz despite opportunity for same being given.
In his cross examination by Ld. Defence Counsel for accused Prem Kumar, he deposed that he was working as Policy Section Incharge before March 2007 and the ECNR stamping was done in passport officer, Lucknow and he never remained incharge of ECNR stamp clearing section. He deposed that he does not know who was Incharge of ECNR clearance in March, 2007 or before that and no opinion was sought from them in respect of ECNR stamp in question at page no. 5. He had seen the passport in the Court Ex. PW 4/A. He deposed that he was not expert in verification of signatures and never worked in CFSL. He further deposed that since the stamp in question belonged to him therefore, he can say that it had been forged. He admitted that he and Mr. Kaushik have never worked in the same section or passport office at Lucknow. He denied the suggestion that due to this reason, he is not sure whether the report is signed by Mr. N.K. Kaushik.
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He also denied that his signatures were genuine in respect of the said stamp and he was deposing falsely.
(v) PW 5 SI Malti Bana was clearing officer and accused Abdul Aziz had approached her for immigration clearance at departure left wing at counter no. 12 at 7 AM. On scrutiny of her passport, ECNR stamp affixed on her passport was found forged. The passport was sent to RPO Lucknow through FRRO. It was confirmed by the report of RPO Lucknow that the stamp of ECNR on passport was forged. He lodged the report Ex. PW 5/A and he seized the passport Ex. P 1, the letter of FRRO Ex. P 2 and its seizure memo Ex. P 3. He sent all the documents alongwith complaint and the passenger to the police station through SAG Rajesh. He deposed regarding the true passport report Ex. PW 4/A and Ex. P 4.
The witness was not cross examined by accused Abdul Aziz despite opportunity for same being given.
In his cross examination by Ld. Defence Counsel for accused Prem Kumar, he denied that the specimen signatures of the passport officials and RPO Office do not remain with them. He further deposed that the aforesaid signatures and specimen of stamp used to remain with them.
(vi) PW 6 SI Sharad Kumar was duty officer who proved the FIR as Ex. PW 6/A and his endorsement Ex. PW 6/B and seizure memo of the travel documents Ex. PW 1/A. The witness was not cross examined by any of the accused despite opportunity for same being given.
(vii) PW 7 Inspector Deepak Chandra is IO in the present case. He has proved the arrest of both accused and investigation was conducted by him.
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In his cross examination by accused, he stated that complaint was handed over to him on 18.05.2007 alongwith accused Abdul Aziz and went to Gorakhpur. He visited the office of Prem Kumar at about 12 Noon and he was arrested from his office itself and they came back from Gorakhpur. He denied that he had not visited the office of Prem Kumar or that no information was given at the local police station at Gorakhpur or that all the proceedings were conducted at PS Delhi.
7. No other witness was examined in PE and PE hence was closed and the matter was fixed for statement of accused Prem Kumar u/s 313 Cr. PC.
8. The entire aforesaid incriminating evidence produced by the prosecution was put to the accused Prem Kumar and his statement u/s 313 Cr. PC was also recorded separately. In his statement tendered u/s 313 Cr. PC, he denied that he in conspiracy facilitated the journey of co accused Abdul Aziz by arranging forged ECNR stamp and signatures of issuing authority, RPO Lucknow on his passport for unlawful consideration. He stated that he has been falsely implicated in this case. He further stated that all the witnesses have falsely deposed against him. He wanted to lead DE, however, no DW was examined despite opportunity for the same being given and DE was closed and the matter was fixed for final arguments.
9. I have heard Ld. APP for State and Ld. Defence counsels for accused. In the present case, the prosecution has examined 7 witnesses to prove its case. I have evaluated their testimony at length.
10. In the matter of appreciation of witnesses, it is not the number of witnesses but the quality of their evidence which is important as there is no requirement in the law of evidence stating that a particular number of witnesses must be examined in order to prove or disprove a fact, it is a time honoured principle that evidence must be weighed not counted. The test is whether the evidence has a ring of truth, is cogent, credible and FIR NO.: 218 OF 2007 POLICE STATION: IGI AIRPORT U/S: 420/468/471 & 12 PASSPORT ACT 7 of 10 trustworthy or otherwise the legal system has laid emphasis on the value provided by each witness as opposed to the multiplicity or plurality of witnesses.
11. The main allegation against the accused persons is that of entering into a 'conspiracy' to cheat the Government of India and the Immigration department. In this regard, it is well settled that "The essence of conspiracy is that there should be agreement in persons to do one or the other of the acts described in Section 120 A IPC. The said agreement may be proved by direct evidence or may be inferred from the acts and conduct of parties. There is no difference between the proof of mode of conspiracy and that of any other offence. It can be established by direct evidence or by circumstantial evidence but Section 10 of the Evidence Act introduces the Doctrine of Agency and if the conditions laid down therein are satisfied the act done by one are admissible against co conspirators. The evidentiary value of the said act is limited by two circumstances namely the acts shall in reference to the common intention and in respect of the period after such intention was entertained by anyone of them. The expression in reference to your common intention is very comprehensive and appears to have been designedly used to give it a wider scope than the words in furtherance of. In English law with the result, anything said, done or written by co conspirators the conspiracy was formed, will be evidence against the other before he entered the field of conspiracy or after he left it. Another important limitation implicit in the language is indication by the expressed scope of its relevancy. Anything so said, done or written is a relevant fact as against each of the persons believed to be so conspiry as well as for the purpose of proving the existence of conspiracy as for the purpose of showing that any such person was a party to it." as held by the Hon'ble Supreme Court of India in Sardar Sardul Singh Caveeshar Vs State of Maharashtra (And Connected Appeals) dated 18.03.1963.
12. In the present case, the testimony of prosecution witnesses is clear, cogent FIR NO.: 218 OF 2007 POLICE STATION: IGI AIRPORT U/S: 420/468/471 & 12 PASSPORT ACT 8 of 10 and corroborating. PW 2 Mohd. Naeem has proved the conversation which took place among the accused persons as well as handing over of the passport of the accused Abdul Aziz to co accused Prem Kumar. He has also proved the arrangement of ECNR stamp by accused Prem Kumar against payment of Rs. 14,000/. The participation of accused in commission of actual act of using the forged stamp is the result of conspiracy already hatched. They used forged stamp as genuine dishonestly to clearance officer and this illegal act was done in pursuance of the said agreement.
13. Another witness PW 4 Mr. Sushil Bhalla has categorically deposed about his forged signatures on the ECNR stamp as well as about the ECNR stamp on the passport of accused Abdul Aziz. The prosecution succeeded in proving that Mr. Sushil Bhalla is not the author of that stamp. The testimony of this witness show that he never worked in that department. Even in his cross examination, a suggestion has been made to the witness that signatures on the ECNR stamp were his genuine signatures which were denied by the witness. The suggestion being made suggests that the accused was aware that the forged signatures were pertaining to PW 4. It proves beyond reasonable doubt that the stamp is forged. In his cross examination by defence Counsel, nothing has come on record which could shaken the credibility of this witness.
14. Further, during cross examination of PW 2, PW 4, PW 5 & PW 7, no material contradictions were brought on record and there is nothing to impeach the testimony of the witnesses which show their credibility. All the witnesses were found corroborating each other on the aspect of arranging of the forged ECNR stamp and making of payment in cash as an unlawful consideration for facilitation of the journey. The gist of conspiracy is that two or more persons did continuously confederate and agree together to carry out the object of conspiracy and as per testimony of PWs, the act of accused Prem Kumar and accused Abdul Aziz show's that they both acted as agreed upon.
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15. Taking into consideration the entire facts and circumstances and the abovementioned observations, I am of the considered view that the prosecution has proved its case against accused Prem Kumar beyond reasonable doubts. Accused Prem Kumar, hence stands convicted for the offences as alleged against him in the present case.
Let he be heard on sentence on 23.04.2013 at 2 PM.
(ANNOUNCED IN THE OPEN SUDESH KUMAR COURT ON 22th April, 2013) ADDITIONAL CHIEF METROPOLITAN MAGISTRATE01 This Judgment contains 10 pages NEW DELHI DISTRICT and each paper is signed by me. PATIALA HOUSE COURTS,DELHI FIR NO.: 218 OF 2007 POLICE STATION: IGI AIRPORT U/S: 420/468/471 & 12 PASSPORT ACT 10 of 10