Delhi District Court
State vs : Satender Pal Singh & Ors. on 17 March, 2011
Page No. 1
IN THE COURT OF SH. J. R. ARYAN,
ADDITIONAL SESSIONS JUDGE; NEW DELHI
Date of Institution : 02.06.2006
Date of judgment reserved on : 07.03.2011
Date of decision : 17.03.2011
Sessions Case No. 153/2008
State Vs : Satender Pal Singh & Ors.
FIR No : 04/06
U/s : 387 / 506/34IPC, 25/54/59Arms Act &
Sec. 3 & 4 of Maharasthra Control of Organized Crime Act
P.S : Special Cell, NDR, New Delhi.
STATE Vs.
1. Satender Pal Singh @ Twinkle
S/o Lt. Sh. Surjeet Singh
R/o 6/55,WEA, Karol Bagh, New Delhi.
2. Ravinder Kumar Malhotra @ Puppy
S/o Lt. Sh. Bahadur Chand
R/o B31, Double Storeyed, Motia Khan, Pahar Ganj,
New Delhi.
3. Rajesh Kwatra @ Ruby S/o Lt. Sh. K. L. Kwatra
R/o A12, Oak Wood Estate, DLF PhaseII, Gurgaon, Haryana.
4. Harpal Singh @ Pepsi S/o Lt. Sh. Surjeet Singh
R/o 6/55, WEA, Karol Bagh, New Delhi. (Proclaimed Offender)
J U D G M E N T :
Accused (1) Satender Pal Singh @ Twinkle S/o Late Surjit Singh R/o Karol Bagh, ( 2 ) Ravindra Kumar Malhotra @ Puppy S/o Bahadur Chand Page No. 2 R/o Motia Khan, Paharganj, Delhi and (3) Rajesh Kwatra @ Ruby S/o K. L. Kwatra R/o DLF Phase2, Gurgaon, Haryana were charge sheeted for offences u/s. 387 / 506 / 34 IPC against all three accused and for offence under 3 and 4 of the Maharasthra Control of Organized Crime Act (hereinafter referred to as MACOCA) against accused Satender Pal Singh. Cognizance of these offence against accused persons was taken by this court, as a special constituted court for offence under MACOCA. Prima facie case to try them for said offences found made out and accordingly charge was framed. Accused Harpal was kept in column no. 2 as absconder.
Charge u/s. 387/34 IPC against these three accused persons is that on 30.01.2006 and during six months period immediately preceding these accused persons in furtherance of their common intention committed offence of extortion by calling threatening calls to complainant victim Arun Gupta R/o C74, Mahendru Enclave, Delhi on his mobile no. 9873406895 with a view to extort money by putting him in a fear of death. This threat to Arun Gupta was given through his friends namely Siddharth and Gurjit on their mobile phones also and thereby these accused committed offence u/s. 387/34 IPC.
Separate charge u/s. 25 Arms Act against accused Satinder Pal Singh @ Twinkle and against accused Ravindra Malhotra @ Puppy was also framed and the charge is that on 02.02.2006 at around 6.30 PM in the parking of Lodhi Garden near Lodhi Garden Restaurant , New Delhi, they were in possession in a loaded firearms, pistol with five live cartridge with Page No. 3 Ravinder Malhotra and pistol 9mm with five live cartridges as well a revolver .32 loaded with live cartridge from Satinder Pal Singh, were recovered when both had been apprehended from a car Honda City No. DL 4CAB7050 from that spot.
Charge u/s. 3(1) (ii) and u/s. 4 of MACOCA against accused Satinder Pal Singh is that on or before 21.3.2006 accused was found running a organized crime syndicate with co accused his brother Harpal (proclaimed offender in this case) and accused being member of an organized crime syndicate possessed unaccountable wealth, movable and immovable, details of which were mentioned in charge sheet and thereby those offence under MACOCA were committed by him. All these three accused persons pleaded not guilty to charge and claimed trial.
Facts and circumstances wherein the present case FIR came to be registered with Special Branch, Special Cell, New Delhi are that : A written complaint Ex. PW1/A dt. 27.01.2006 was addressed by complainant Arun Gupta S/o Shri S. K. Gupta to Jt. Commissioner of Police, Special Cell, PHQ, New Delhi. Complaint allegations were that complainant was a importer by profession. He was receiving threats to his life from Rajesh Kwatra @ Ruby R/o A12, Oak Wood Estate, DLF Phase 2, Gurgaon, Haryana and Twinkle who was addressing himself as Badmash of Karol Bagh area. Threatening words used by accused Twinkle as per this complaint are " Everybody knows me, if you have any contact in police just ask my name.
Page No. 4 Complainant further averred that he did some import business with Rajesh Kwatra in Mumbai about a year back and accused Rajesh Kwatra owed him Rs. 12 Lakhs which he had not paid and instead was calling the complainant for more money by threats. It is further averred that in the last six months accused had been calling at odd hours in night and had been threatening the complainant to shoot him. Accused was also calling friends of the complainant and telling them that complainant will be killed if complainant did not listen to his demand of money. On 25.01.2006 accused started calling on the mobile phone of the complainant no. 9873406895 from 11PM till 4.30AM and he also called on complainant's friend Siddharth phone no. 9899288830 as well on complainant friend Gurjit phone no. 9811307788 asking about the residential address of the complainant with a threat to kill the complainant. Complaint further averred that Twinkle and Rubby were notorious by nature and they had snatched car no. DL4CR1306 from complainant's friend Siddharth a few month before and that car was still with them. Siddharth did not complain as accused were scaring him. Accused even came to Siddharth's house M 100, Greater Kailash Part2 carrying revolver and when Siddharth called police, on seeing PCR arriving accused ran away. Complainant also provided mobile telephone numbers from which numbers he had receiving threatening calls on 25.1.2006 night and those numbers were 9810337181 and 9810334369.
This complaint received in the office of Jt. Commissioner of Police, Page No. 5 Special Cell, was finally assigned to Inspector Mohan Chand Sharma, Lodhi Colony, New Delhi . Inspector Mohan Chand Sharma directed for the registration of the case u/s. 387/506 IPC and investigation was assigned to SI Dalip Kumar. FIR was registered on 30.01.2006.
SI Dalip Kumar recorded statement of witnesses particularly Siddharth and Gurjit and collected the mobile phone call details when supported the complainant's allegation regarding calls received on the night of 25.1.2006. On 02.02.2006, SI Dalip Kumar along with a team of police officials on a secret information raided the spot nearby Lodhi Garden restaurant, Lodhi Road, New Delhi. A Honda City car no. DL4CAB7050 was found parked and accused Satender Pal @ Twinkle was in the driving seat and accused Ravinder Malhotra was the front in adjoining seat and both were apprehend. Search of accused Satender Pal @ Twinkle led to recovery of a loaded 9mm pistol make P Beretta Cal made in Italy. Search of accused Ravinder Kumar Malhotra @ Puppy led to recovery of a loaded pistol Beretta Gardone Cal 765 made in Italy from his possession. Another weapon, a loaded revolver make Webley & Scott Ltd., made in England .32 bore bearing no. B74770 was recovered from the front lower desk board of car. Interrogation of accused Satender Pal revealed that the revolver was his licensed weapon but on that moment he failed to show any licence of that weapon. After preparing sketch of those weapons as well cartridges, these were seized.
Search of accused Satender Pal further led to recovery of a mobile Page No. 6 phone make Nokia model 6030 operating on number 9810334369. Two mobile phones make Nokia Model 9300 operating on number 9810337181 and mobile phone make Nokia model 3120 operating on no. 9811281184 were recovered from accused Ravinder Malhotra @ Puppy and these were also seized. Some photostate of arms licence in the name of Satender Pal which appeared to have been issued from the office of District Magistrate, Amritsar, Punjab, were recovered from the car. Honda City car belonged to one Mahender Singh relative of Satender Pal Singh. Offnce u/s. 25 Arms Act and section 34 IPC were added in the case. Interrogation of these two accused persons revealed that they had friendship with Rajesh Kwatra through their business of gambling / satta and that Rajesh Kwatra had a dispute with Arun Gupta regarding money around Rs. 12 lakhs. Rajesh Kwatra @ Ruby had discussed that issued with these two accused and accordingly they had started giving threatening calls to the complainant. Mobile telephone no. 9810337181 recovered from the possession of Ravinder Malhotra when arrested in this case was found connected to those threatening calls received by the complainant. This telephone no. as well another telephone no. 9810334369 were found to have been obtained on the basis of forged documents and fake identity. Accused Rajesh Kwatra obtained anticipatory bail order from the High Court and accordingly on 17.04.2006 he was formally arrested and released on bail. Accused Rajesh Kwatra produced car DL4CR1306 make Toyota Corolla which belonged to Siddharth, partner of the complainant Arun Gupta, and that car was Page No. 7 seized as case property.
Investigation revealed that Satender Pal @ Twinkle was an active bad character of police station Karol Bagh, New Delhi and was found involved in about 30 criminal case and the offences in those criminal case were of murder, attempt to murder, rioting, gang rape, extortion as well offences waging war against the state and under TADA as well Explosive Substances Act. These cases were from various police stations, New Delhi and Gurgaon (Haryana).
Approval for offences under 3 of the MACOCA was obtained from Joint Commissioner of Police of Special Cell, New Delhi on 21.3.2006 and accordingly the offence was added in this case against accused Satender Pal @ Twinkle. Further investigation in this case was taken over by ACP Sanjeev Kumar Yadav of Special Cell, NDR, Lodhi Road, New Delhi. Interrogation of accused Satender Pal revealed that he was involved in heinous crimes since past 20 years and had accumulated huge properties and wealth by those crimes committed with the help of his crime syndicate and that crime syndicate consisted accused himself and his brother Harpal Singh @ Pepsi and others. Accused Satender Pal declined to get his confession recorded before DCP in terms of section 18 of MACOCA. Record concerning previous criminal case against Satender Pal was collected from concerned police station and courts and that record revealed that Satender Pal started his criminal activities from the year 1986 and the earliest criminal case FIR No. 57/1986 from PS Roshana Road ( now PS Page No. 8 Roop Nagar,Delhi) was regarding assault by knife on a canteen owner when accused was Delhi University college student. In the year 1987 he was found involved in offence of robbery and Arms Act from PS Karol Bagh. In the year 1988 he was found involved in five criminal cases of criminal intimidation and Arms Act. In the year 1989 he involved himself in three criminal cases from PS Karol Bagh and his name was entered in a list of bad character of the area. Accused did not mend his criminal mind and continued involving in criminal activities with his brother Harpal Singh and associates and in the year offence of attempt to murder, TADA and Arms Act came to be registered. Further two cases of attempt to murder were registered in 1992 and one case of attempt to murder and Arms Act was registered in 1993. Another criminal case of attempt to murder and Arms Act was registered in 1995.
In the year 1997 this accused Satender Pal along with his brother Harpal Singh @ Pepsi were arrested in a sensational broad day murder which incident occurred in Tis Hazari Court Complex. Two persons were shot dead in that incident. Even during pendency of that murder, in between 1997 to 2000, accused was found involved in five other criminal cases of hurt and threat and in a further criminal case of criminal conspiracy for waging war against State, Explosive Substance Act and Arms Act and in that case 18 Kgs of RDX explosive, AK47 rifle, timers, detonators and large quantity of ammunitions were recovered from a truck.
On the release of accused from custody in the year 2001, he with his Page No. 9 other associates were again arrested in a criminal case of abduction and gang rape in FIR No. 650/2002 u/s. 363/366/427/376/368/34 IPC from PS Lajpat Nagar and again accused was found involved in another criminal case FIR no. 83/2004 u/s. 186 / 353 / 34 IPC and u/s. 25 / 27 Arms Act from PS Hari Nagar, New Delhi. Another criminal case under Delhi Public Gambling Act from PS Special Cell, New Delhi.
Charge sheet further mentioned that in most of those case accused Satender Pal was acquitted by the court but some of them were still pending. Certified copies of charge sheet and charges framed against him during past 10 years were filed with the charge sheet.
As regards money and properties acquired by accused the charge sheet's allegation are that though accused had a permanent account no. AXKPS 7743K but he had never filed any income tax returns. Accused had a saving bank account no. 153147 with ABN Amro Bank, Barakhamba Road, Delhi, which was a joint account with his wife Arvinder Kaur since 1997 and this account had number of cash deposits entries of big amounts. Some of those cash deposits are mentioned in the charge sheet like Rs. 49,900/ deposited on 27.2.2003, another cash deposited of Rs. 49,000/ deposited in January 2004 , cash deposit of Rs. 69400/ in March 2004, cash deposit of Rs. 27000/ in April 2004, deposit of Rs.1,02,800/ in May 2004 and cash deposit of Rs. 49900/ in July 2004 and another cash deposit of Rs. 40000/ in December 2004.All these cash deposits in the year 2004 came to Rs. 3,93,800/ Page No. 10 Similarly in the year 2005 a number of cash deposit appeared from that account statements and total cash deposit in the year 2005 was Rs. 2,85,000/ and total cash deposit in these two years 2004 and 2005 came to Rs. 6,78,800/. Bank account in the names of mother and wife of accused with Indian Overseas Bank, Karol Bagh also revealed that there were huge amount in this account like Rs. 1,72,263/was in the account of Smt. Hardarshan Kaur in her account no. 9234. Another saving account no. 23803 in the name of Arvindr Kaur,wife of accused, had a credit balance of Rs. 41,220/. There were a few fixed deposit receipt also in the name of family members of accused Satender Pal. Further allegations are that a big cash flow in SB Account No. 9234 which pertains to Smt. Hardarshan Kaur was found in the past 5 to 6 years. In the year 2000 total cash flow in that account was for Rs. 3,31,500/. In the year 2001 a total cash flow was Rs.2,90,000/. In 2002 a cash flow for Rs. 1,01,000/ and in the year 2003 there was a cash flow of Rs. 1,49,500/ and in the year 2004 there was a cash flow of Rs. 2,20,000/ . In the year 2005 there was a cash credit of Rs. 7.61 Lakhs in that account and in the year 2006 there was a cash credit of Rs. 84000/. Total cash in flow in this account from the year 20022006 was of Rs. 17,87,500/.
Similarly cash in flow in the SB account of Smt. Arvinder Kaur account no. 23803 was of Rs. 3,65,000/ from the year 2003 till filing of the charge sheet. Investigation revealed that Smt. Hardarshan Kaur, Arvinder Kaur had no source of income and they were residing and living as a joint Page No. 11 family. Satender Pal was found carrying a small business of property dealing. His wife was unemployed and there was no permanent source of income. Cash in flow referred to above suggested accused Satender Pal to have acquired money by his criminal activities. Vebley & Scott revolver from accused Satender Pal was found under Arms licence got issued by District MagistrateAmritsar,Punjab. But then licence was in violation of Arms Act as accused being permanent resident of Delhi since birth had procured that Arms licence from another State without intimation / registration in his own State authority. Accused brother namely Harpal Singh was also found involved in about 36 cases and was also Bad Character of area of PS Karol Bagh and those criminal cases and material reflected that accused Harpal Singh was also an active member of the crime syndicate of accused Satender Pal Singh. Firearms recovered in this case were got examined from CFSL and report confirmed that it were firearms and cartridges were ammunition which were in working condition. Sanction for prosecution of accused for offence under Arms Act was obtained and accordingly these three accused persons were charge sheeted. Accused Harpal Singh was kept in column no. 2 as accused absconding.
Trial commenced with framing of charge against these three accused persons as mentioned in the earlier part of this judgment.
Complainant Arun Kumar Gupta on whose report the present case was registered has appeared and examined as PW1. Witness supported the case only to extent that in January 2006, he received some threatening calls Page No. 12 on his mobile no.9873406895. The person calling those threats disclosed himself Twinkle a bad character from Karol Bagh and threatened this witness that he was aware of residence and office address of this witness and threatened to kill him. Witness further deposed that threatening calls were received from a mobile no. 9810334369 and 9810337181 and he then made a complaint to special cell and he was assured by officials from special cell that necessary action will be taken. Witness further deposed that he lodged that complaint with special cell after about 2 / 3 days of those threatening calls were received by him and he signed some blank papers in special cell and then what was recorded on those papers he did not know. He identified his signature on Ex. PW1/A which was his complaint but then he deposed that he was not aware of its contents. Thereafter , witness deposed, he did not receive any threatening calls. Witness further deposed that he did not know Rajesh Kwatra or that accused Kwatra was present in court in this case.
Ld.SPP for State, got the witness declared hostile and witness was cross examined. In his cross examination witness stated that complaint was not in his hand writing. He denied if he gave in that complaint that threat calls were given by Rajesh Kwatra or that he had a business dealing with Rajesh Kwatra or that accused Rakesh Kwatra then owed this witness Rs. 12 Lakhs. He denied to have made any such statement in his complaint and witness was confronted with his complaint. Witness denied to have been threatened by Rajesh Kwatra when witness demanded Rs. 12 Lakhs from Page No. 13 him. He further denied if threatening calls were being received since last six months. Witness further admitted that 25.1.2006 night the culprit had started calling on the mobile phone of this witness from 9PM and continued calling till 4.30 AM and that mobile phone of Siddharth, friend of this witness as well mobile phone of other friend Gurjit had also been called by the caller for knowing the residence address of this witness with a further threatening language that he would kill Arun Gupta.
Witness denied to have given in his complaint that Twinkle and Ruby were notorious or that they had snatched his partner's car no. DL 4CR1306 a few months before or that his partner Siddharth did not complain as scared of those persons or that those persons had visited Siddharth residence at M100, Greater Kailash Part2, New Delhi while they were armed with revolver or that Siddharth had to called PCR. Witness was confronted with his complaint statement Ex. PW1/A. Witness denied if he knew Rajesh Kwatra or that Kwatra was introduced to this witness by his friend Siddharth or that witness then took up some business dealing with Rakesh Kwatra. He further denied to have provided some metal scraps worth Rs. 40 Lakhs to Rajesh Kwatra. He further denied if Rakesh Kwatra repaid Rs. 28 Lakhs, a part of that consideration or that Kwatra @ Ruby had not been responding to repay the balance amount of Rs. 12 lakhs or that when this witness asked for that amount from Kwatra , accused Kwatra started making threatening calls. Witness was confronted with his earlier statement given o the police where all these facts were found mentioned.
Page No. 14 Finally witness denied to have identified accused Twinkle and accused Ravinder Malhotra before the police on 3.2.2006 and witness was confronted with earlier 161 CrPC statement of that fact. He denied to have resiled either having been won over or for any other reasons. Witness was still subjected to cross examination by the defence counsel for accused Satender Pal. In this cross examination witness admitted that on no occasion he was required to identify by voice the concerned accused Twinkle and he admitted that in the court he had seen accused Twinkle for the first time. Even other wise it was none of the prosecution case that investigating officer required accused Twinkle to be identified by his recorded voice with any specimen voice.
Ld. SPP tried to impress upon this court that accused Satender Pal being a person of the nature who was involved in heinous crimes would be a potential perception of a threat and that could be the reason why witness failed to support prosecution . Such an argument could have been persuasive had there been any further evidence of any kind to support this prosecution charge u/s. 387/34 IPC. Witness has resiled completely. He has denied any kind of acquaintance with accused Rajesh Kwatra and thus there was no occasion where witness had any kind of business dealing with Rakesh Kwatra and that on account of some amount becoming due against Rajesh Kwatra that Rajesh Kwatra behaved in a criminal manner to deter the witness from demanding his amount. Testimony of this witness even from the cross examination taken up by Ld. SPP completely fails to provide Page No. 15 any support to charge.
Friend of complainant Gurjit Aneja when examined as PW2, he too failed to support the case. He deposed that he did not know any fact of this case. In the cross examination conducted by Ld. SPP , he denied to have had friendship with Rajesh Kwatra or that he introduced Rajesh Kwatra to complainant Arun Kumar Gupta or that Arun and Rajesh Kwatra had some business dealing or that any amount fell due to Arun from Rajesh Kwatra. He was also confronted with his 161 CrPC Statement and he denied all such facts concerning this case.
Another friend of complainant namely Siddharth could not be produced in evidence as he was stated to have gone abroad, to USA and was settled there. But then mother of Siddharth namely Smt. Saroj Oberio when examined as PW4, she did not support the prosecution case. She stated that she knew accused Rajesh Kwatra @ Ruby as he was friend of her son Siddharth. Car Toyota No. DL4CR1306 registered in her name was given by her son to Rajesh Kwatra in August 2004 as requested by Rajesh Kawtra. She deposed further that while car was with Rajesh Kwatra it met with an accident when being driven by Deepika w/o Rajesh Kwatra and this witness got the car released on superdari. Witness further admitted that when her son Siddharth demanded car back from Rajesh Kwatra, accused Rajesh did not return the car and complaint was lodged by Arun Gupta who was friend of Siddharth and the car was seized by the police. Witness deosed that she got it released on superdari. She further deposed Page No. 16 that she could not understand why Arun had lodged a complaint against Rajesh Kwatra. She denied any knowledge of an incident with her son Siddharth when he was staying in Greater Kailash because in between June 2005 to November 2005 she had gone to America. She further deposed that her son Siddharth however told her that once Rajesh Kwatra visited her son house in the night and misbehaved with him.
As the witness was found to have not supported the prosecution case she too was cross examined by Ld. SPP. She admitted that Arun Gupta had some business dispute with Rakesh Kwatra and on that account Rajesh Kwatra was annoyed with her son Siddharth and used to threaten him. She further denied if Rakesh Kwatra had threatened Siddharth to kill him when he refused to return the car or that because of those threats, Siddharth had to shift his residence or that somewhere in July 2005 accused Rakesh Kwatra came to her son house and threatened him as told by her son to this witness. She was confronted with her previous statement. In the cross examination witness was shown an affidavit Ex. PW4/D1 wherein witness identified signature of her son Siddharth and that affidavit has been received in court through courier which had been sent from America. She admitted that her son Siddharth had told about that affidavit to her also.
Accordingly the prosecution did not get support to its case from this witness also. Ld. SPP could not convince this court if this witness was really hostile to the prosecution case. No reason appeared from the testimony of this witness that she deposed against prosecution or to favour Page No. 17 accused person for any motive. Prosecution accordingly fails to get support to its case that extortion threatening calls were made to Arun Gupta through Siddharth or through PW4 or that Rakesh Kwatra & Twinkle were responsible for those threatening calls. These were the only 3 prosecution witnesses concerned directly with the charge u/s. 387 /34 IPC. Further evidence of the police official witnesses leading to arrest of accused persons or that then recovery of firearms from two accused namely Satender Pal and Ravinder Kumar Malhotra will not provide any support to this charge in the absence of witness directly concerned with charge supporting the prosecution case. Charge u/s. 387 / 34 IPC against all three accused accordingly must fail and found not proved and established at all.
Then comes the charge u/s. 3 (1) (ii) and section 4 of the MACOCA against accused Satender Pal. Section 3 of the MACOCA provides for punishment for the offence " organized crime". Where organized crime is found committed which did not result in death of a person is punishable with imprisonment which shall not be less then five years and which may extend to life imprisonment as well fine. Offence "organized crime" has been defined in section 2 (e) of the Act. The ingredients of the offence "
organized crime" as per the definition are :
1. A continuing unlawful activity by an individual singly or jointly.
2. Either as a member of organized crime syndicate or on behalf of such syndicate.
3. By use of violence or threat of violence or intimidation or coercion or Page No. 18 other unlawful means (as per Hon'ble Supreme Court's judgment in Ranjitsing Brahmajeetsing Sharma case 2005 (2) JCC 689 words " other unlawful means" must take its colour from the preceding words in view of the reasons and objects which the special statute MACOCA sought to achieve and accordingly such other unlawful means should be in the form of use of a violence, threat of violence, intimidation or coercion). To quote from the judgment : " Interpretation clauses contained in Sections 2(d), 2(e) and 2(f) are interrelated. An 'organised crime syndicate' refers to an 'organised crime' which in turn refers to 'continuing unlawful activity. As for us to consider as to whether the words "or other lawful means" contained in Section 2(e) should be read "ejusdem generis"/ "noscitusa sociis" with the words (i) violence, (ii) threat of violence, (iii) intimidation or (iv) coercion. We may, however, notice that the word "violence" has been used only in Section 146 and 153 A of the Indian Penal Code. The word 'intimidation' alone has not been used therein but only Section 506 occurring in Chapter XXII thereof refers to 'criminal intimidation'. The word 'coercion' finds place only in the Contract Act. If the words 'unlawful means' is to be widely construed as including any or other unlawful means, having regard to the provisions contained in Sections 400,401 and 413 of the IPC relating to commission of offences of cheating or criminal breach of trust, the provisions of the said Act can be applied, which prima facie, does not appear to have been intended by the Parliament."
4. Finally the objective of such organized crime is to gain pecuniary benefit or to gain undue economic or other advantage for himself or for any other Page No. 19 person or to promote insurgency.
What constitutes a continuing unlawful activity, the same has been defined and provided in section 2 clause (d) of the Act. This definition provides that continuing unlawful activity means :
1. An activity prohibited by law ;
2. It is cognizable offence punishable with imprisonment for three years or more ;
3. Committed either singly or jointly as a member of the organized crime syndicate or on behalf of such syndicate ;
4. In respect of which activity more than one charge sheet was filed before a competent court within preceding 10 years period ; and
5. And the court took cognizance of such offence.
A point arose as to what extent such criminal acts committed by a person in preceding 10 years to constitute a continuing unlawful activity and thereby constituting an offence of " organized crime" would be violative of fundamental right under articles 20 of the Constitution of India, this proposition has been dealt with by Delhi High Court in case Babloo Srivastava v State 164(2009) DLT 218. Relying upon division bench judgment of Bombay High Court in Bharat Shanti Lal Shah case as well division bench of Delhi High court in Jagmohan @ Mohan Singh case , it has been held that " that there was nothing unconstitutional about these provisions as accused was not being asked to stand trial for the cases prior to the said Act coming into force. A statute which in its direct Page No. 20 operation is prospective cannot be called as retrospective statute because a part of the requisite for its action is drawn from a time antecedents to its passing. Quoting The Queen v. St. Mary Whitechapel case (supra) 116 ER 811, it has been held and observed : " A statute which in its direct operation is prospective cannot be called a retrospective statute because a part of the requisites for its action is drawn from a time antecedent to its passing. The act of omission or commission which constitutes an offence of the crime has to be after the said Act come into force and the accused persons should have been involved in cognizable offences punishable with imprisonment of three (3) years or more in respect of such offences, more than one charge sheet having been filed before the competent court. The limitation for the charge sheets to be considered is that they should have been filed within a period of ten years preceding the date of the commission of offence in respect of which an FIR is sought to be registered under the said Act and the competent Court has taken cognizance of one more such charge sheet. The fact that some charge sheets have been filed prior to the said Act coming into force does not mean that they become ipso facto subject matter of the prosecution under the said Act. This is also the stand of the respondents and, thus, there is really no aspect of retrospectivity which is involved".
Finally an illustration as quoted in Jagmohan case has been again reproduced in this judgment and which is as under :
" Where a person commits no unlawful activity after the invocation of the said Act. In that case the person cannot be Page No. 21 arrested under the said Act on account of offences committed by him before coming into force of the said Act even if he is found guilty of the same. However, if the person continues with his unlawful activities and is arrested after the promulgation of the said Act then the person can be tried for offence under the said Act. If a person ceases to indulge in any unlawful act after the said Act then he is absolved of the prosecution under the said Act but if he is continuing unlawful activity it cannot be said that the State has to wait till he commits two acts of which cognizance is taken by the Court after the Act coming into force. The observations in Sajjan Singh v. State of Punjab case (supra) are to the effect that a statute cannot be said to be retrospective merely because a part of the requisites for its action is drawn from a time antecedent to its passing, thus, cannot be ignored.
Coming back to the present case the point to be examined is whether accused Satender Pal Singh @ Twinkle can be found and said to have committed an offence of " organized crime". Witness relevant on this point are all police officials . Prosecution in order to prove this charge will have to be seen if it has brought evidence fulfilling and satisfying the above said ingredients of offence of organized crime. Since from the judgment in Om Parkash Srivastava case, the previous activity of an accused constituting cognizable offence punishable with three years or more imprisonment in preceding 10 years period are not the substantive crime to be tried or adjudicated by court trying an accused for offence of organized crime, involvement of accused in past criminal activities is only to constitute and satisfy one of the ingredients of the organized crime namely " continuing Page No. 22 unlawful activity". If a person is found indulging in continuing unlawful activity and that activity should be as a member of organized crime syndicate and it involves use of violence, threat of violence, intimidation or coercion and the objective to achieve is the pecuniary benefit or gain undue economic or other advantage, then only an offence of organized crime will come into existence. In the present case even if prosecution succeeds in bringing on record the list of 30 criminal cases in which accused Satender Pal has been found involved or even to say that charge sheets for cognizable offence punishable for three years or more had been filed or even that court took cognizance by those offices against accused Satender Pal, irrespective of outcome of those case where accused Satender Pal had been tried or is being tried if some of them are still pending, in the absence of criminal charge of the present case having been proved and established, the organized crime may not be held and established committed by accused and then proved u/s. 3 (1) (ii) of the MACOCA.
As seen above witnesses relevant on charge of extortion in this case have not supported the prosecution case. However prosecution sought to seek support from the circumstance that threatening calls had been received by PW1 Arun Kumar Gupta on his mobile 9873406895 and those threatening calls were made from two mobile nos. 9810334369 and 9810337181 and to that extent complainant Arun Kumar Gupta supported the prosecution case. Mobile phone operating on no. 9810337181 had been recovered in the personal search of accused Ravinder Kumar Malhotra Page No. 23 when he was arrested on 2.2.2006. Nodal Officer of the concerned mobile telephone 9810337181 which was being provided by Bharti Airtel Ltd. when examined as PW18 witness produced record concerning that mobile and proved it as Ex. PW18/A. He deposed that pre paid enrollment form for this mobile was in the name of Ankit Jain as per the application Ex. PW18/B. Identity proof of Ankit Jain was Ex. PW18/C. Prosecution then further examined its witness PW6 a constable who deposed that on 05.07.2006 he took 160 CrPC notice in the name of Ankit Jain issued by SI Dalip Kumar for its services on his address RZ90B/9, Gali No. 4, BlockA, Kailash Puri but then no such person by the name of Ankit Jain was found traceable and the address was also found incorrect. Ld. SPP argued that if threatening calls were made from this mobile and this mobile was recovered from the possession of Ravinder Mahotra and Ravinder Malhotra when apprehended and arrested in this case he was in the company of accused Satender Pal, it can be inferred that continuing unlawful activity satisfying the ingredients of offence of organized crime could be found to have been established from this circumstance against accused Satender Pal.
Further witnesses on this fact are the police officials who had arrested accused persons in a raid on 2.2.2006. PW20 SI Vijay Tyagi, PW 21 Inspector Kailash Bisht and PW23 SI Dalip Kumar all have deposed that on a prior secret information they raided the spot which was nearby entry gate of Lodhi Garden, a parking lot in front of Mausam Bhawan, Page No. 24 Lodhi Road and both accused Satender Pal and Ravinder Malhotra were found present in a car Honda City. Witness have deposed that besides firearms recovered from these two accused persons, one mobile phone was found in the possession of Satender Pal and two mobile phones were recovered from the possession of accused Ravinder Malhotra. Though these witnesses did not depose in evidence as to with what these mobile phone nos. were operating but then they deposed that two mobile phone recovered from Ravinder Malhotra had been seized through memo Ex. PW 20/M. This seizure memo revealed that these two mobile were NOKIA mode 9300 IEMI no 355369100105533618 and was found operating on a no. 9810337181 and its SIM card no. was 8991100506054009649. Accused Ravinder Malhotra as well Satender Pal have denied and disputed their apprehension and arrest from the spot and in the manner as deposed by the police official witnesses. Ld. defence counsel argued that in the absence of any independent public witness joined by the police officials before or at the time of raid or arrest of accused persons, no such fact deposed by witnesses should be believed and prosecution cannot get support to its charge of crime under MACOCA against accused Satender Pal from this circumstance of recovery of mobile phone from Ravinder Malhotra. Ld. SPP on the other hand argued that there was no reason to disbelieve police official witness when they specifically deposed that they did ask some passerby public people to join their raiding team and no one cameforward to oblige them and thus if they were unable to force any public person and Page No. 25 the tame was crucial where they had to raid the spot so as to prevent accused persons from fleeing that spot, their testimony was to be believed. Recovery of this mobile phone no. 9810337181 which had been used for making threatening calls to the witness should be believed. I have considered these arguments. Ld. defence counsel further challenged and criticized the way in which mobile phone calls details as Ex. PW18/A was sought to be proved. Counsel argued that where printout details of those calls had not been proved in accordance with provision of section 65B of Evidence Act then those details could not said to have been duly proved and then contact between mobile phone of the complainant and the mobile phone no. 9810737181 could not be said to have been proved in accordance with law.
I do find justification in this arguments of ld. defence counsel. Where the police party was proceeding to apprehend and arrest a criminal who was involved in several and serious crimes in the past then all efforts ought to have been made that some independent public witness was joined. Admittedly the place from where accused persons were captured was a public place and there were several Government offices around as has been admitted by the witnesses. Some official from any Government office could have been joined to be a witness in the raid proceedings. Though the law is not that that in absence of any independent public witness police officials were not to be believed but then keeping in view the plea of accused that they were being implicated falsely, a close scrutiny of Page No. 26 evidence of police officials is required to find out if their testimony stands the scrutiny of cross examination and provides a confidence to the court to believe it. Admittedly mobile phone calls as per Ex. PW18/A do not bear a certificate in terms of section 65B of the Evidence Act. It being a computer generated print out in itself cannot be held duly proved in accordance with law. Moreover some efforts ought to have been made and taken to join a direct witness from these mobile calls which are hundreds in numbers from the mobile phone 9810337181 if this mobile phone had been with Ravinder Malhora. Any other person either from called no. or from calling no. from these details could have been that said mobile no. was in the possession of Ravinder Malhotra which then in all probability either was used by Ravinder Malhotra or by his associate when threatening calls were made to complainant Arun Gupta. It is a matter of record that except the prosecution case that accused Satender Pal and Ravinder Malhotra were together when they were apprehended and arrested on 2.2.2006 there is no other evidence to prove their association. Ld. defence counsel was justified in his contention that in the absence of any other material to show that Ravinder Malhotra was a part of any crime syndicate, the offence of organized crime against accused Satender Pal Singh could not be held proved from the circumstance that above said mobile phone had been recovered from his associate Ravinder Malhotra.
Charge for ofence of organized crime against Satender Pal cannot be held to have been proved by the prosecution.
Page No. 27 Then comes charge u/s. 4 of MACOCA. Again prosecution has to prove that accused Satender Pal was in possession of movable and immovable properties which he failed specifically to account for and possession of that movable or immovable properties was on behalf of a member of organized crime syndicate. Prosecution brought on record the bank account statements of accused Satender pal, of his wife and of his mother and other family members. Ld. defence counsel argued that where the charge of "organized crime" was found not duly proved then there was no organized crime syndicate and in the absence of any evidence that movable or immovable properties found in possession of accused Satender Pal was connected with organized crime and was on behalf of organized crime syndicate then the charge may not to be found duly proved. Ld. counsel further condemned the mode of proof of those bank account statement when those account statement were computer generated print out and did not bear any certificate towards fulfilment of requirement u/s. 65B of the Evidence Act, it could not be considered to have been proved in accordance with law. Ld. SPP, on the other hand, argued that when no objective had been raised while the witness was being examined and bank account statements were duly exhibited which would show that there were number of cash deposits in those account and deposit of a huge amount suggested that acquisition of those amount were by criminal activities of extortion and threats etc. Ld. defence counsel submitted that witnesses examined in defence by accused Satender Pal have by their testimony Page No. 28 rebutted the prosecution charge by showing the mode in which various immovable properties held by mother and other family members of accused Statender Pal had inherited from their ancestor and the charge could not be held to have been proved. Ld. defence counsel in this regard pointed towards certificate of sale Ex. PW4/B which had been issued in the name of mother of accused Satender Pal long way back in the year 1966 concerning a property no. XV/1101314, Motia Khan, Pahargang. Sale certificate of another property no. IV/237/A in Bhola Nath Nagar, Shahdara , had been issued in the name of the father of accused Satender Pal way back in the year 1969. Another certificate of sale Ex. PW4/A is in the name of Smt. Hardarshan Kaur mother of accused Satender Pal Singh which had been issued in the year 1972 concerning a property 28/F, Kamla Nagar, Delhi. Counsel argued that further defence witnesses have been examined to show that these properties came to be sold and disposed off as present occupants of these properties were some other persons and accordingly the money flow came to the family of accused from these properties. I have considered these arguments and contentions.
Though official witness from bank when examined as PW16 had brought bank account statement from the bank records but then admittedly those bank account statements are not carrying a certificate in terms of section 65B of the Evidence Act. Neither those statement of account have been certified as true copy as per the Banker's Book of Evidence Act. These bank account statements from Indian Overseas Bank taken Ex. PW16/A, Page No. 29 16/C, 16/G and E respectively which pertained to accused Satender Pal and his other family members may not be strictly taken into account in the absence of its proof in terms of section 65B of the Evidence Act satisfied and in the absence of a certificate under Banker Books of Evidence Act. Moreover mere incident of some cash deposit in those account may not necessarily and exclusively lead to an inference that the money came through criminal activities of extortion and threats. Ld. defence counsel pointed out that police officials themselves admitted in their cross examination that accused Satender Pal was carrying a lodging guest house business in Paharganj area where he had a lodging house in the name of Goldy Inn. Even the bank account with ABN Amro bank was in the name of Goldy Inn Guest House proprietor Satender Pal Singh. Bank account statement of this ABN Bank has been proved Ex. PW17/A. This statement of account is duly certified under Bankers Books of Evidence Act by Manager of the bank and thereby admissible in law but then a few cash deposits entries like deposit of Rs. 49900/ in February 2003 and another same amount deposited in July 2004 and two deposits of same amount in April 2005 and again in May 2005. Other deposits are of ordinary amount. It is difficult to draw an conclusively inference that these cash deposit were relatable to unaccounted wealth on behalf of an organized crime syndicate particularly where organized crime was found not proved and established against accused. Charge u/s. 4 of MACOCA also cannot be said to have been proved by the prosecution.
Page No. 30 Finally comes charge under Arms Act against accused Ravinder Malhotra and accused Satender Pal Singh. Ld. defence counsel argued that in the absence of any independent public witnesses joined by the police, the testimony of police official may not be found sufficient to hold this charge proved. As held above that though it is not a rule of law that testimony of police official must seek corroboration from independent witness before its acceptability but then testimony of police official must exhibit a acceptability beyond any doubt and should be credible and consistant. In the present case Inspector Mohan Chand Sharma from Special Cell had got the case registered on 30.1.2006 u/s. 387/506/34 IPC. Mohan Chand Sharma has not been made a witness. Explanation given b accused Satender Pal is that in fact he was called by Inspector Mohan Chand Sharma to his office and accused Satender Pal on his own accord went to that office and there he was falsely implicated. It is argued that firearms were planted on him. Accused Ravinder Malhotra has also explained that he was picked up from his place of business i.e., a lodging house in Paharganj. He was carrying guest house as Hotel Neelam Palace from property no. 7977 Aara Kasha Road, Paharganj, Delhi. Three police officials Vinay Tyagi, Dalip Kumar and one Dabas came and asked accused to come along with them as needed for some questioning by SHO of PS Paharganj. They took accused in their gypsy vehicle and then a bribe was demanded for his release which he was unable to satisfy and fulfill and he was then implicated falsely. Accused then examined his lodging house Page No. 31 Manage in defence. This defence witness DW1 Rajinish Kumar has deposed on oath that accused Ravinder Malhotra picked up from guest house by police officials on 2.2.2006. Police allegations were that there were some complaints against him and he was required to be taken to PS Paharganj. Cross examination on this witness could not challenge veracity of this witness . Ld. defence counsel rightly argued that defence witness stood on the same footing as the prosecution witness and there was no reason to disbelieve him. Ld. SPP argued that where no action was taken by anybody on behalf of this accused if accused was picked up and taken away from his guest house then such a evidence has to be discredited as after an thought. I could not convince himself that merely no action was taken by anybody on behalf of accused Ravinder Malhotra then this evidence of DW1 should be considered as false. Prosecution must see that its evidence provided a credibility. There was sufficient opportunity for police officials to have joined some independent public witnesses. They could have joined any official from Government department. There is a staring contradiction when SI Dalip Kumar the initial IO had deposed that he was in Karol Bagh area with team of police official when he received the secret information and reached Mausam Bhavan, Lodhi Road spot and there the other police official team consisting Inspector Kailash Bisht and SI Vinay Kumar Tyagi was already present. In contradiction to this evidence, SI Vinay Tyagi and Inspector Kailash Bisht have deposed that while they were in their special cell office Lodhi Colony police station, as informed and directed by Page No. 32 Inspector Mohan Chand Sharma they proceeded for this raid and as they reached Mausam Bhawan site they found SI Dalip with his team already present. How come the secret informer was with them when secret information was received by SI Dalip in Karol Bagh is anybody guess. Defence counsel was further justified in his submission and contention that seal which had been used in sealing the parcels of the recovered firearms i.e. seal VKT remained with the police and those sample had been sent to CFSL, Chandigarh only on 23.2.2006 and thus no reliability in the integrity of the parcels could be placed from such evidence. Counsel further referred to testimony of PW15 who was the MHC(M) in special cell on 23.2.2006 where in cross examination witness deposed that those firearms parcels were deposited in malkhana on 30.1.2006. This testimony is contrary to prosecution case where recovery of the firearms was only on 2.2.2006. Defence counsel was further justified in his criticism of the prosecution case where no steps were taken to join owner of the Honda city car in this investigation. He could have been a person to tell as to how and in what circumstance that car came in the possession of Satender Pal. In fact Satender Pal have borrowed this car from Mahender Singh , its registered owner when he was to reached Inspector Mohan Chand Sharma and Mahender Singh would have told that fact to the investigating officer. Ld. SPP argued that Mahender Singh could have been produced in defence. Prosecution to my view ought to have been examined and inquired from Mahender Singh as to how and in what circumstance the honda city car had Page No. 33 been with accused Satender Pal. Non joining of this witness also creates some doubt in the prosecution story. Prosecution accordingly fails to prove if accused Satender Pal and Ravinder Malhotra were in fact apprehended and arrested from Lodhi Garden gate spot and that the firearms had been recovered from their possession. Charge under Arms Act also fails.
All three accused persons in the present trial namely Satender Pal Singh, Ravinder Kumar Malhotra and Rajesh Kwatra are acquitted of their charge. Firearm pistol P Beretta Cal in this case are confiscated to the State. Firearm revolver Webley & Scott Ltd. bearing no. B74770 was the licenced firearms of accused Satender Pal Singh but then licence stood revoked. Disposal of this property to Satender Pal shall be in accordance with the provisions under Arms Act with due compliance. File be consigned to record room.
Announced in the Open (J.R.ARYAN)
court on 17/03/2011. ADDL. SESSIONS JUDGE (01) cum
SPECIAL DESIGNATED JUDGE /
TADA / POTA / MACOCA
NEW DELHI DISTRICT, NEW DELHI.