Delhi District Court
Cbi vs Naresh Sharma on 11 September, 2024
IN THE COURT OF SH. PRASHANT KUMAR
SPECIAL JUDGE (PC ACT) (CBI)-07
ROUSE AVENUE COURTS
NEW DELHI
CNR No.: DLCT11-000293-2020
CC No. 36/2020
RC No. RC-DAI-2019-A0029
CBI Vs. Naresh Sharma,
S/o Late Sh. Hari Prakash Sharma,
Address: - H. No. E-83, 1st Floor,
Greater Kailash Part-I, New Delhi.
Date of institution : 02.11.2020
Judgment Reserved on : 09.08.2024
Date of Judgment : 09.09.2024
Memo of Appearance:
Sh.A. K. Tanwar, Ld. Sr. PP for CBI.
Sh. Sandeep Sharma, Ld. Counsel for accused.
JUDGMENT
1. Facts of the case in brief are that an FIR bearing No. DAI-2019- A0020/ACB/CBI/New Delhi was registered against accused CC No. 36/2020 CBI Vs Naresh Sharma Page No. 1 of 137 Dr.Naresh Sharma on 16.08.2019 and charge under Section 7 of Prevention of Corruption Act, 1988 (as amended in 2018) was framed against accused Dr.Naresh Sharma alleging that he misused his official position as public servant by demanding illegal gratification other than legal remuneration and accepted bribe amount of Rs.4 Lakh from Trivender Kumar Rajpoot, Sr.Manager- BD of M/s Sterile India Pvt. Ltd.
2. Complainant in present case is Trivender Kumar Rajpoot, Sr.Manager-BD, who was working in M/s Sterile India Pvt. Ltd. He lodged a complaint with ACB on 16.8.2019 stating that Dr. Naresh Sharma, Deputy Drug Controller, CDSCO , FDA Bhawan, New Delhi has demanded bribe of Rs. 5 lakhs for renewal of written confirmation for Bulk Drug (API) to the said company located at Plot No. 100, Sector-56, Phase-IV, HSIIDC, Kundli, District Sonepat, Haryana for which application was filed in June, 2019 which was already recommended by Zonal Office, Ghaziabad and since he did not wish to pay the bribe, therefore, lodged a complaint.
3. The investigation has revealed that said complaint was marked for verification to SI Umesh Kumar, who conducted the same in presence of independent witness Subhankar Chatterjee, who is Assistant Section Officer from Delhi Development Authority wherein it was confirmed that accused Dr. Naresh Sharma demanded bribe by using code words A, B, C, D, E referring as 1 lakh, 2 lakhs and so on and accused agreed to accept bribe of Rs. 4 CC No. 36/2020 CBI Vs Naresh Sharma Page No. 2 of 137 lakhs by way of gesture asking the complainant to arrange by 05:00 PM. The said verification proceedings were recorded in a memory card 'Q-1' through DVR. On the basis of which FIR was registered and marked to Inspector Raj Saurbh for laying the trap.
4. The investigation has further revealed that Inspt. Raj Saurabh constituted the trap laying team consisting of Inspectors N. C. Nawal, Harish Chandra, Nikesh Kumar Upadhyay, Kuldeep Sharma and Sub Inspectors Vinod Kumar, Umesh Kaushik and other sub-ordinate staff which also consists of two independent witnesses Subhankar Chatterjee and Ashish Kumar from DDA and they were explained the content of complaint and verification proceedings. Complainant gave Rs.4 lakhs comprising of 200 notes in the denomination of Rs.2,000/-.
5. A demonstration was given by use of phenolphthalein powder on the said currency notes and thereafter said amount treated with phenolphthalein powder was put in the pocket of complainant with directions to hand over the same to accused on his specific demand and shadow witness Subhankar Chatterjee was directed to remain close to the complainant to watch the proceedings. Both the complainant and said witness were also directed to give signal by rubbing their face after the transaction of bribe and give a missed call to TLO, in case TLO or other members were not visible.
6. A DVR containing SD card was also kept in the left side pant pocket of complainant in 'Switched On' mode after recording CC No. 36/2020 CBI Vs Naresh Sharma Page No. 3 of 137 introductory voices of both the aforesaid independent witnesses. Whatsapp calls by complainant to accused Naresh Kumar were made and were recorded in the said DVR. Investigation further revealed that, DVR was kept in left side pant pocket of complainant in 'Switched On' mode and conversation which took place, at the time of taking bribe, at the spot out side the gate of Bal Bhawan, New Delhi in red colour WagonR Car of accused bearing registration no. DL7CH 4789 were also recorded therein. It is stated that accused Dr. Naresh Sharma was caught red handed on the spot in the instant case.
7. The investigation disclosed that the bribe amount was recovered from the dash board of car of accused and wash of the spot where bribe amount was kept, was taken along with one unused car sticker which were sealed as 'Exhibit CDBW'. The memory card used was also sealed as 'Exhibit Q-2'. During investigation at the spot a rough site plan of the spot was prepared and whatsapp chat and calls log from the phone of accused with complainant was also taken out. All the articles, i.e. CDBW, Q-2, unused parking sticker, mobile phone of accused were taken into possession.
8. The investigation has further revealed that search of office of accused conducted and file relating to seeking Written Confirmation of M/s Sterile India (Pvt.) Ltd. was being dealt by accused and the same were also seized. All the exhibits Q-1, Q-2, CDBW, DVR along with transcript of conversation were sent to CFSL and CFSL report was obtained. Sanction for prosecution of CC No. 36/2020 CBI Vs Naresh Sharma Page No. 4 of 137 accused was also obtained by the investigating officer. After conclusion of his investigation, IO filed final report in the court on 02.11.2020 for offence under Sections 7 of Prevention of Corruption Act, 1988 (as amended in 2018).
9. After compliance of Section 207 Cr.P.C arguments on charge were heard and Charge for the offences punishable under Section 7 of Prevention of Corruption Act, 1988 (as amended in 2018) has been framed against accused Naresh Sharma on 06.09.2021
10. At the outset, it is mentioned that prosecution has examined following 21 witnesses:-
Witnesses from Ministry of Health/CDCO PW-1 Dr. Anil Ranga, Director To prove copy of notification (Vig.) Health Ministry & letter forwarding with sanction for prosecution of accused as Ex. PW 1/A, Ex. PW 1/B & 1/C respectively.
PW- Mahaveer Singh, Drug File of complainant's Company
11 Inspector Ex. PW 11/A containing applications, note sheets etc. as Ex. PW 11/B to Ex. PW 11/E. PW- Santosh Vitthalrao To prove the SOP and circular 13 Indraksha, Asst. Drugs for dealing with applications for Controller, CDSCO renewal of licence/written confirmation Ex. PW 13/A & 13/B. PW- Sidharth Sahai Malhotra, To prove the procedure of 19 Drug Inspector, CDSCO renewal of written confirmation and identify the voice of accused in Q-1.
CC No. 36/2020 CBI Vs Naresh Sharma Page No. 5 of 137 PW- K, Bangarurajan, Joint Drug To prove procedure and validity 20 Controller, CDSCO of written confirmation/its renewal, note sheet Ex. PW 20/A in the file Ex. PW 11/A, identify voice of accused, production of personal data of accused vide memo Ex. PW 20/B (colly.) Nodal Officer PW-2 Pawan Singh Voda Phone To prove documents relating to Mobile No. 9899078956 of accused Ex. PW 2/A along with CAF, Call details, Cell Chart, Section 65-B of Indian Evidence Act Certificate as Ex.
PW 2B to 2/F were given to CBI.
PW-4 Praveen Kumar Reliance Jio To prove documents relating to Mobile No. 9811099604 of Sanjeev Goel, owner of company Ex. PW 4/A vide which CAF, CDR, Certificate under Section 65-B of Indian Evidence Act with Cell Chart Ex. PW 4/B to 4/E respectively were given to CBI.
PW-6 Rajiv Vashist Bharti Airtel To prove documents relating to Ltd. Mobile No. 9599071077 of Sterile Zindia Pvt. Ltd. of Sanjeev Goel, owner of company Ex. PW 6/A vide which CAF, CDR, Cell Charts, Certificate under Section 65-B of Indian Evidence Act Ex.
PW 46B to 6/E respectively were given to CBI and fresh Cell ID chart with Section 65-B CC No. 36/2020 CBI Vs Naresh Sharma Page No. 6 of 137 certificate Ex.PW 6/F & 6/G were produced in court.
Complainant PW-3 Trivender Kumar Rajpoot To prove complainant Ex. PW 3/A, Verification proceedings Ex. PW 3/B, handing over memos Ex. PW 3/C & EX. PW 3/D, Transcription-cum- voice identification memo of Q-1 & Q-2 Ex. PW 3/E, seizure memo of mobile phone of accused, taking printout of whats chat and certificate under Section 65-B Ex. PW 3/F (colly), envelopes containing Q-1 Ex. PW 3/G & H, envelope containing complainant's mobile and mobile Ex. PW 3/I &J respectively, identifying the Currency notes Ex. PW 3/K & proceedings of trap etc. PW- Sanjeev Goel Owner of complainant's 12 company to prove the appointment letter of complainant, seizure memo and copy of mobile bill issued to complainant. Ex. PW 12/A to 12/C. INDEPENDENT WITNESSES PW-7 Manbar Singh, Section To prove the proceedings in Officer EPFO whose presence whatsapp chat from mobile of complainant were taken out as Ex.PW 3/F and identified signature of the envelope Ex. 3/I containing the said mobile.
CC No. 36/2020 CBI Vs Naresh Sharma Page No. 7 of 137 PW-9 Subhankar Chatterjee, Asst. To prove the verification Director, from DDA proceedings Ex. PW 3/B, identifying the memos prepared during pre-trap proceedings and after trap proceedings Ex. PW 9/A to Ex. PW 9/K. PW- Ashish Kumar Asst. Director To prove the trap proceedings 17 from DDA conducted in his presence.
CFSL PW-5 Mahesh Kuamr Jain, Sr. To prove letter Ex. PW 5/A Scientific Officer Physics vide which exhibits Q-1, Q-2 Division and DVR were received in CFSL and his report Ex. PW 5/B and the envelopes with case property Ex. PW 5/C to 5/M respectively in which exhibits were received.
PW- Deepti Bhargava, Sr. To prove letter Ex. PW 10/A 10 Scientific officer vide which case property Exhibit-CDBW was received in CFSL and her CFSL report regarding chemical examination as Ex. PW 10/B regrading car dash board wash Ex. PW 9/G bottle containing wash with car parking sticker and the envelopes in which they were kept as Ex. PW 10/C to Ex.PW 10/E. PW- P. K. Gottam To prove the copies of exhibits 15 prepared by him from SD cards Q-1, Q-2 and DVR received vide letter Ex. PW 15/A used in this case and information given by him to collect the copies vide letter Ex. PW 15/B and identify his signatures on the envelopes CC No. 36/2020 CBI Vs Naresh Sharma Page No. 8 of 137 containing the said exhibits.
CBI Officials
PW-8 Sunil Kumar To prove the proceedings of
taking printout of whatsapp
from the mobile of complainant
by him Ex. PW 3/F with
certificate under Section 65-B
of the Act. To identify the
envelope Ex. PW 3/I
containing mobile Ex. PW 3/J
PW- Inspt. Raj Kumar To prove the search list Ex. PW
14 14/A conducted at the office of
FDA in which file Ex. PW 11/A
was seized and authorization for
search Ex. PW 14/B.
PW- Inspt. Umesh Kaushik, To prove the verification
16 Verification Officer proceedings Ex. PW 3/B
conducted by him by using SD
Card Q-1 on the basis of
complainant, pre-trap
proceedings, post trap
proceedings, handing over
memos, printout of whatsapp
taken and certificate given by
him under Section 65-B of the
act as Ex. PW 16/A.
PW- Inspt. Raj Saurabh, Trap To prove the trap team
17 Laying Officer proceedings conducted by him.
PW- Inspt. H. V. Attri, To prove the proceedings
21 Investigating officer after conducted by him, i.e. taking
trap. printout of whatsapp chats Ex.
PW 21/A, preparing voice
identification memo of accused
Ex.PW 21/B, taking copy of
CC No. 36/2020 CBI Vs Naresh Sharma Page No. 9 of 137
suspension order of accused Ex.
PW 21/C, sending case property
to CFSL, collecting call details
records, recording statement of
witnesses, obtaining sanction
for prosecution and filing of
charge sheet.
DEFENCE OF ACCUSED
11. Statement of accused under Section 313 Cr.P.C was recorded on 23.03.2024. He has stated that he never called PW 12 at any point of time. It was Sanjeev Goel who called him on his phone and he enquired about his application on which he told to Sanjeev Goel that he will look into the file as and when the same is received and will do the work as per rules and he was not a final authority in the matters pertaining to the issuance or the renewal of the written confirmations and my work is limited. He has further stated that the final approval has to be given by the Drugs Controller General of India. The drug license and written confirmation was granted to M/s Sterile India Pvt ltd at Plot No. 100 (Block A, B & C) Sector 56, Phase IV, Kundli, Sonipat. and it could be renewed only at the same address. The complainant's company sought renewal at Plot No. 100 Sector 56, Phase IV, Kundli, Sonipat and on two additional blocks D & E on Plot No. 118 G Sector 56, Phase IV, Kundli, Sonipat, which was not permissible as per rules (Drugs and Cosmetics Act, 1940 and Rules thereunder - 1945). He has stated that on 14.08.2019, his office was sealed before lunch due to Independence day security arrangements and no meeting between CC No. 36/2020 CBI Vs Naresh Sharma Page No. 10 of 137 him and the complainant PW3 took place on that day. He has further stated that from 07.08.2019 till 16.08.2019, the file pertaining to the application of renewal of the Written Confirmation of M/s Sterile India Pvt. Ltd was not in his office. He received the said file on 16.08.2019 with a draft approval of the renewal of the written confirmation thereby approving the renewal of the written confirmation at Plot No. 100 Sector 56, Phase IV, Kundli, Sonipat only. Accordingly, he approved it and recommended the issuance of written confirmation on the original address only as provided in Form 26 and not in respect to additional blocks at Plot No. 118G, Sector 56, Phase IV, Kundli, Sonipat the block D & E and send the file to the office of Joint Drug Controller of India before lunch on 16.08.2019. Thereafter, he left the office for updating his Aadhar card at Axis Bank, Nehru Place and returned to HIS office at about 04:00 PM. No meeting between him and the PW3 took place on 16.08.2019. On the day of raid, the recommendations/work at the end of the accused was concluded and the file was forwarded to the office of Joint Drug Controller Dr.Bangaruranjan, who forwarded the same to the office of Drug Controller General (India) on the same day. Thus there was no occasion or motive on his part to demand the bribe.. His noting and recommendation on the file further shows that no favour has been done by him nor improper work was done while dealing with the file of M/s Sterile India Pvt Ltd. He stated that the file was received at the office of FDA on 6.08.2019 at central registry where the dairy number was endorsed. On 7.08.2019, he marked the same to Drug Inspector PW-11 Mahaveer Singh for processed who after CC No. 36/2020 CBI Vs Naresh Sharma Page No. 11 of 137 processing put up two draft written confirmation certificates, 1 for 14 API and 1 for 01 API with covering letter to PW-13 Santosh Vitthalrao for renewal of the above said company. PW 13 after receiving the file found discrepancies in the addresses and he mentioned the same in the noting after discussing the matter with Drug inspector Mahaveer Singh and forwarded the same to the him on 16.08.2019. He mentioned in noting that the address specified in Form 26 and inspection report as M/s Sterile India Pvt Ltd 100 sector 56 Phase IV HSIIDC may only be considered further WC for renewal case. He has stated that complainant party knew that they will not get the written confirmation renewed on additional address and blocks and may have come to know that the written confirmation was not approved as per their expectation, therefore in order to take revenge and put pressure on the office of CDCSO & DGCI to get written confirmation renewed at both addresses, he was falsely involved in the present case. He has stated that the MD of the company Sanjeev Goel visited the office of the CBI with PW-3 on 16.08.2019 and he remained with the CBI team till late night but his presence was concealed by the CBI officials, which clearly shows that the MD Sanjeev Goel and CBI were acting in connivance to make a false case against him and he never demanded nor accepted any bribe from any one. No bribe was recovered from his car and the CBI planted the recovery of the bribe amount and falsely involved him in this case. He has stated that PW-3 and PW-12 being main conspirators to foist a false case upon him and inimical towards him deposed falsely against him. He has stated that independent witnesses are public servants and CC No. 36/2020 CBI Vs Naresh Sharma Page No. 12 of 137 they are under pressure to deposed as per the case made by the CBI knowing that if they don't support the CBI case, departmental action can be initiated against them. He has also filed printout of the manual downloaded from the official site of SONY India in respect to the working of the software 'SoundOrganizer' to show that audio digital files can be tempered easily with the use of 'SoundOrganizer'.
12. On the other hand, accused has also examined three witnesses in his defence evidence, who are as under:
DW-1 Mayank Saraswat from FDA office has produced attested copy of circular dated 13.08.2019, vide which office building of FDA Bhawan was ordered to be sealed at 2 PM on 14.08.2019 by the order of SHO, IP Estate as Ex.DW1/A and copy of note sheet Ex.DW1/B & Ex.DW1/C to prove the compliance.
13. DW-2 Jyoti Shree from Axis Bank has deposed that Aadhar card updation acknowledgment dated 16.08.2019 updated at 01:15 bears her signature at point A and of accused at point B and that of Reena Shrma wife of accused, on whose Aadhar card basis, Aadhar card of accused was update at point C.
14. DW-3 Reena Sharma wife of accused has deposed that she was on CCL from 2.7.2019 to 15.5.2020 vide sanction order Ex. DW 3/A and on 16.8.2019 at around 1 PM, she along with her husband was at Axis Bank, Nehru Place Delhi for updation vide Ex. DW 2/A which bears her signature at point 'C'.
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15. I have heard arguments of Sh.Anil Kumar Tanwar, Ld. Sr. PP for CBI and Sh.Sandeep Sharma, Ld. Counsel for accused and gone through the record carefully.
16. Before proceeding further, it is important to lay down the points of determination as per Section 354 Cr.P.C.
PO I N T S O F D E T E R M I NAT I O N i. Whether accused Dr. Naresh Sharma while working as DDC in CDSCO, FDA Bhawan, New Delhi had demanded a bribe of Rs.5 Lakhs from complainant for renewal of written confirmation and later on negotiated it to Rs.4 Lakhs and was caught red handed while accepting bribe of Rs.4 Lakhs from complainant on the spot and Rs.4 Lakhs were also recovered from the dash board of his car?
17. In order to determine the liability of accused Dr. Naresh Sharma and to establish charge so framed under Section 7 of the Prevention of Corruption Act against him, prosecution has to establish following facts in order to prove the liability of the accused:
i. Accused is a public servant having such a position that he CC No. 36/2020 CBI Vs Naresh Sharma Page No. 14 of 137 was in a position to do the work required by complainant or was instrumental in getting the work done for complainant.
ii. Accused demanded Rs.5 Lakhs from complainant Sanjeev Goel and Trivender Kumar Rajput to do the job which he was otherwise under a duty to do so.
iii. Accused accepted bribe of Rs.4 lakh from Trivender Kumar Rajput as per demand as illegal gratification and was caught red handed on the spot.
iv. Recovery of Rs. 4 Lakhs was made from the dashboard of car of accused Naresh Sharma which was recovered by the trap team from the spot itself when accused Dr. Naresh Sharma was apprehended
18. In this regard, it is important to discuss the law on the subject under which accused has been charged with. As per record, charge so framed against the accused is under Section 7. Thus, it is important to mention Section 7 Prevention of Corruption Act, 1988 (New Act) (Amended) which is reads as under:
7. [Offence relating to public servant being bribed. [Substituted by Act No. 16 of 2018, dated 26.7.2018.] - Any public servant who-
(a) obtains or accepts or attempts to obtain from any person, an undue advantage, with the intention to perform or cause performance of public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant; or CC No. 36/2020 CBI Vs Naresh Sharma Page No. 15 of 137
(b) obtains or accepts or attempts to obtain, an undue advantage from any person as a reward for the improper or dishonest performance of a public duty or for forbearing to perform such duty either by himself or another public servant; or
(c) performs or induces another public servant to perform improperly or dishonestly a public duty or to forbear performance of such duty in anticipation of or in consequence of accepting an undue advantage from any person, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
Explanation 1. - For the purpose of this section, the obtaining, accepting, or the attempting to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by public servant, is not or has not been improper.
Illustration - A public servant, 'S' asks a person, 'P' to give him an amount of five thousand rupees to process his routine ration card application on time. 'S' is guilty of an offence under this section.
Explanation 2. - For the purpose of this section-
(i) the expressions "obtains" or "accepts" or "attempts to obtain" shall cover cases where a person being a public servant, obtains or "accepts" or attempts to obtain, any undue advantage for himself or for another person, by abusing his position as a public servant or by using his personal influence over another public servant; or by any other corrupt or illegal means;
(ii) it shall be immaterial whether such person being a public servant obtains or accepts, or attempts to obtain the undue advantage directly or through a third party.
19. In a nutshell following are the essential ingredients of Section 7 Prevention of Corruption Act, 1988 (New Act) (Amended upto 2018) CC No. 36/2020 CBI Vs Naresh Sharma Page No. 16 of 137 i. Accused should be a public servant.
ii. He has accepted or obtained or attempted to obtain from any person.
iii. Such receiving is for himself or for any other person. iv. Such acceptance is any gratification other than legal remuneration.
v. Such public servant as reward has agreed to do or not to do any official act.
vi. Such act is in exercise of his official function. vii. By his act, such public servant has favoured or disfavoured. viii. If all such ingredients are established then he is liable for punishment with imprisonment for a term not less than three year but may extend to 7 years and also liable to pay fine.
WHETHER ACCUSED IS PUBLIC SERVANT?
20. It is a matter of record and admitted position which is not disputed or controverted by accused person that he is a public servant and covered under the definition of public servant as defined under Section 2 (C) of Prevention of Corruption Act, 1988 (Amended).
21. In this regard, it is important to mention here the fact pertaining to grant of sanction for prosecution. PW-1 is a relevant witness to be mentioned here, who has granted sanction for prosecution Ex.PW1/C which is the sanction order dated 02.03.2020 (part of D-
26).
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22. PW-1 Dr. Anil Ranga was working as Director (Vigilance), Ministry of Health & Family Welfare, Govt. of India, Nirman Bhawan has deposed that in the year 2019, he received request from CBI for grant of sanction for prosecution against accused Dr. Naresh Sharma who was working as Deputy Drugs Controller in Central Drugs Control Organization. He further deposed that along with request, he received statement of CBI officials and independent witnesses, transcripts of the conversation, verification memo etc.
23. He further deposed that initially documents sent along with request were examined by Vigilance Division, Ministry of Health and Family Welfare which were forwarded to him through Under Secretary (Vigilance) and after carefully examining the material I.e, documents and statement of witnesses and after proper application of mind he submitted the case to Chief Vigilance Officer.
24. He further deposed that case was submitted to competent authority i.e. Minister of Health & Family Welfare on behalf of President of India through Secretary, Ministry of Health & Family Welfare. The Minister tentatively agreed to grant the sanction for prosecution. The case was referred to Chief Vigilance Commissioner for advice. The Commission agreed for according sanction for prosecution. The advice was again put up before Minister for Health & Family Welfare and he approved the sanction for prosecution.
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25. He further deposed that sanction was conveyed to CBI vide Sanction Order dated 02.03.2020. The sanction was accorded on behalf of President of India which was authenticated by PW-1, vide notification dated 16.02.2002 exhibited as Ex.PW-1/A and order of Ministry of Home Affairs by the Government to authenticate the sanction for prosecution against Dr. Naresh Sharma.
26. PW-1 identified his signatures on letter dated 02.03.2020 (D-26) exhibited as Ex.PW1/B at point A vide which he forwarded sanction for prosecution to CBI. The said witness also identified his signatures on sanction order dated 02.03.2020, exhibited as Ex.PW1/C (part of D-26) along with his official seal at point A on the said sanction order.
27.During his cross examination, PW-1 has corroborated what he has stated in his examination-in-chief and no material contradiction has emerged. It is a matter of record that accused Dr. Naresh Sharma has been working as Deputy Drug Controller in CDSCO, FDA Bhawan and he falls within the definition of government servant/public servant. No material contraction has emerged from the examination of PW-1 that sanction so granted is not proper as per law or suffering from procedural lapses/irregularities.
WHETHER ACCUSED ACCEPTED OR OBTAINED OR ATTEMPTED TO OBTAIN GRATIFICATION?
28. In this regard the allegation against accused Dr. Naresh Sharma are CC No. 36/2020 CBI Vs Naresh Sharma Page No. 19 of 137 that Trivender Kumar Rajput who was Senior Manager in M/s Sterile India Pvt. Ltd. was requiring renewal of written conformation of bulk drug for his company situated at Plot No. 100, Sector - 56, Phase - IV, HSIIDC, Kundli, Sonepat, Haryana. He had applied for the same in June, 2019 which was recommended by Zonal Office, Ghaziabad. It is further alleged that accused Dr. Naresh Sharma, Deputy Drug Controller, CDSCO , FDA Bhawan, New Delhi was the concerned officer who had to clear the file for M/s Sterile India Pvt. Ltd. by renewing written confirmation for bulk drug and in furtherance of process thereof he had demanded bribe of Rs.5 Lakhs.
29. In this regard, prosecution has examined 21 witnesses and there are three witness examined by accused in his defence. Complainant is PW-3 Trivender Kumar Rajput and owner of company i.e., M/s Sterile India Pvt. Ltd., is PW-12 Sanjeev Goel. The complaint given by PW-3 Trivender Kumar Rajput is Ex.PW3/A. PW-12 is Sanjeev Goel, who is owner/MD of M/s Sterile India Pvt. Ltd. PW-3 Trivender Kumar Rajput is the complainant and working as Senior Manager in M/s Sterile India Pvt. Ltd.
30. PW-12 Sanjeev Goel, has stated that he is engaged in business of Pharmaceuticals and name of his company is M/s Sterile India Pvt. Ltd. and he is Managing Director of this company, while his wife and father are its Directors.
31. PW-12 further deposed that he applied for renewals of written CC No. 36/2020 CBI Vs Naresh Sharma Page No. 20 of 137 confirmation at Zonal Office, Ghaziabad and inspection was conducted from Zonal Office, Ghaizabad and report was submitted to Central Office, Delhi. He has further deposed that on 13.08.2019 accused Dr. Naresh Sharma had called him PW-12, which was missed and when PW-12 called back, accused said that he had to meet him because he is the signing authority for written confirmation.
32. PW 12 has further deposed that thereafter he authorized Trivender Kumar Rajput (PW-3), complainant, who met accused on 14.08.2019. PW-3 informed PW-12 that accused had demanded Rs.5 lakhs from him to issue the written confirmation. In this regard, on 16.08.2019 PW-12 along with PW-3 went to CBI office and PW-3 lodged the complaint with CBI against accused.
33. PW 12 has further deposed that vide memo Ex.PW12/A bearing his signature at point 'A', he had handed over CBI the appointment letter Ex.PW12/B of PW-3 Trivender Singh Rajput working as Sr. Manager Business Development in the company and this letter bears his signature at point 'A' along with a certificate regarding allocation of mobile no. 9599071077 in the name of company to PW-3 and copy of bills having his signature at point 'A' exhibited as Ex.PW12/C (colly.). PW-12 also identified application for allotment of above said mobile number issued in the name of company having photograph of PW-12 at point X as Ex.PW6/B. He has also identified application for mobile number 9811099604 exhibited as Ex.PW4/B (part of D-25) submitted by him along with CC No. 36/2020 CBI Vs Naresh Sharma Page No. 21 of 137 his photo at point X, on the said application.
34. During his cross-examination, PW-12 has corroborated what he has stated in his examination-in-chief and no material contradiction has emerged.
35. Next witness examined by prosecution is PW-3 Tirvender Kumar Rajpoot, who is the complainant in the present case has deposed that he is working as a Senior Manager (Business Development) in Sterile India Pvt. Ltd since January, 2016, which is in the business of manufacturing of API (Active Pharma Ingredients) for formulation companies for preparation of medicines. He further deposed that Sanjeev Goel is the Managing Director of the company and Prem Chand is non functional Director and Rajni Goel is also non-functional Director.
36. He deposed that in June 2019 company had filed an application for written confirmation seeking permission to export API in European Countries in the North Zone of CDSCO. He further deposed that after filing of application, the plant of the company was inspected by officials of North Zone, CDSCO and approval was received through e-mail by the end of July, 2019 from CDSCO, North Zone office informing that written confirmation would be received by company in due course, however, nothing was received.
37. On 13.08.2019, MD of company informed PW-3 that he had received a call from Drugs Office and he asked me to inquire as to CC No. 36/2020 CBI Vs Naresh Sharma Page No. 22 of 137 where written confirmation was stuck. PW-3, on 14.08.2019 came to FDA Bhawan, New Delhi to make inquiry, at the reception PW- 3, was asked to meet Mr. Naresh Shama, who had made telephone call to the MD of the company.
38. PW-3 Tirvender Kumar Rajpoot went to office of accused Dr.Naresh Sharma and inquired about the progress of the file upon which accused replied that the file had been cleared. When PW-3 further inquired in how much time written confirmation would be given, accused replied to wait and asked what is the hurry and thereafter Dr. Naresh Sharma took out some books and turned some pages and after sometime he asked me to inform my MD that Rs.5 lakhs would be required. It is further stated that when PW-3 asked for what purpose Rs.5 lakhs are required, accused Dr. Naresh Sharma told him to inform MD as said by him.
39. PW-3 found his behaviour somewhat rude upon which PW-3 felt upset and came out of the office of accused Dr. Naresh Sharma. PW-3 further deposed that outside the office of accused Dr.Naresh Sharma, 2-3 persons were talking about some medicines and one of them said that he had seen PW-3 somewhere and one of those person asked PW- 3 as to why he was looking upset and PW-3 narrated him the entire incident and also said that he was unable to comprehend as to why Rs. 5 lakhs were being demanded when all the paper works was complete. Thereafter, there was silence for a few moments and one of those person said that "yaha to sare kaam aise hi chalte hai ram bharose". PW-3 further deposed that one CC No. 36/2020 CBI Vs Naresh Sharma Page No. 23 of 137 of those persons, then said that if PW-3 feel it appropriate, he should approach CBI office and inform them about complete facts and CBI office would take action and the work will be done.
40. PW-3 Tirvender Kumar Rajpoot, then came out of FDA Bhawan and informed MD of the company about the entire episode including the advice given by those persons to approach CBI, upon which MD of the company advised him that he had never given any bribe nor he would give any bribe and asked PW-3 Tirvender Kumar Rajpoot to return back. Thereafter, PW-3 came back to his office and talked with MD of the company who asked him to approach CBI.
41. PW-3 Tirvender Kumar Rajpoot further deposed that on 16.08.2019, he had gone to CBI office, Lodhi Road, New Delhi and on the main gate he was asked to go to first floor of CBI office, where he met officer of the CBI and PW-3 Tirvender Kumar Rajpoot informed him about the entire incident. The said officer took PW-3 to SP, CBI and he again narrated the entire incident before SP, CBI. After hearing PW-3 Tirvender Kumar Rajpoot, SP asked the officer to get an application in writing from him and then proceed accordingly.
42. PW-3 Tirvender Kumar Rajpoot wrote the application on dictation of CBI officer as he was not aware as to how write the application as he was in CBI office for first time. PW-3 Tirvender Kumar CC No. 36/2020 CBI Vs Naresh Sharma Page No. 24 of 137 Rajpoot identified complaint exhibited as Ex.PW-3/A dated 16.08.2019 (D-1) which is in his handwriting bearing his signatures at point A.
43. PW-3 has further deposed that after about 15-20 minutes, the CBI officer explained him about the recording device and told him that he was required to go to the FDA Bhawan and record the conversation. One person was summoned by the CBI officer from DDA and thereafter, the CBI officer completed some formalities and obtained the signature of the said person on some papers and thereafter, he along with two CBI officers and the said person from DDA, started for FDA Bhawan from CBI office. He was given the recording device asking him to go inside and record the conversation. When he went there along with the other person from DDA. It was lunch time in FDA office, so they came out.
44. After about half an hour, they were again asked to go to FDA Bhawan and they entered the office and the other person remained in the corridor outside the office. When PW-3 asked accused Dr. Naresh Sharma about the file, accused Dr. Naresh Sharma told that he had already informed him, about the amount of Rs. 5 lakhs. After some negotiations, the amount was reduced to Rs. 4 lakhs. Thereafter, PW-3 came out where CBI officer took the device from him in which the conversation was recorded and they went back to CBI office.
45. PW-3 has further deposed that after reaching CBI office, he was CC No. 36/2020 CBI Vs Naresh Sharma Page No. 25 of 137 asked to wait and after hearing the conversation in some room, CBI officer came and asked him to wait further. PW-3 was informed that they would again go to Drugs Office in the evening. PW-3 further deposed that after about 1 or 1 ½ hours, CBI officer asked PW-3 to arrange for Rs. 4 lakhs which was arranged. The money was handed over to CBI officer which were in the denomination of Rs.2,000/-. CBI officer sent PW-3 to another officer to understand further course of action.
46. PW-3 has further deposed that the other officer of CBI told him that they would treat the currency notes with some powder and PW-3 had to give them to accused Dr. Naresh Sharma and when the other officer was explaining him this procedure, 4-5 other officials of CBI also reached there. The CBI officials had also prepared some documents in their office which took about two hours. Thereafter, all the CBI officials and other persons assembled and the entire procedure was explained to them and the complaint Ex. PW-3/A was also shown to them and thereafter, PW-3 was asked to communicate with one officer, whom they were addressing as TLO Saurabh.
47. TLO gave PW-3 his mobile number and explained him the entire procedure again and told him that the currency notes would be kept by him in his pocket which has to be given to accused Dr.Naresh Sharma and if accused Dr. Naresh Sharma do not accept the same, he was asked to put it anywhere in the vehicle.
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48. PW-3 has further deposed that at about 05.30/06.00 PM the team of the CBI officials, along with PW-3 and the witnesses, started for FDA Bhawan. After reaching near the FDA Bhawan, he made telephone call to accused Dr. Naresh Sharma which did not connect at the first instance and on second attempt the call got connected and accused Dr. Naresh Sharma asked him to come at the gate of Bal Bhawan and when waiting there the CBI officer, PW-3 received a call and the caller informed him that accused Dr. Naresh Sharma would come in red colour Wagon R car and the CBI officer asked PW-3 to go to the gate Bal Bhawan and he walked to the gate of Bal Bhawan after getting down from the car. PW-3 saw one red colour Wagon R car coming from the side of the Drugs Office and going towards Bahadurshah Zafar Marg.
49. PW-3 further deposed that when the vehicle came closer, he indicated the driver to stop the vehicle which was stopped. He deposed that accused Dr. Naresh Sharma was driving the vehicle. Thereafter, he sat inside the vehicle on the front co-passenger seat and took out money from his pocket and tried to give it to accused Dr. Naresh Sharma but accused did not accept the money and by indicating his hand, he asked him to keep the money, at the dash board of the car.
50. PW-3 has further deposed that he kept the money on the dash board of the car and thereafter, gave a missed call to the TLO as instructed by him upon which the trap team surrounded the car. Many passerby also gathered at the spot. He deposed that the CBI CC No. 36/2020 CBI Vs Naresh Sharma Page No. 27 of 137 team took out accused Dr. Naresh Sharma from the car. PW-3 also came out of the car. He has deposed that two CBI officials caught hold of accused Dr. Naresh Sharma and other officials checked the car. The bribe money, was recovered from dash board of the car, which was taken by CBI officials and was sealed in an envelope. Further, other articles recovered from the car, were also taken into possession by the CBI officials and at that time PW-3 was standing at some distance from the car as the car was surrounded by the CBI officials. He has further deposed that in his presence, CBI officials had dipped one white colour tissue like substance in the solution. The solution was hazy. The solution was put by CBI officials in a bottle and the bottle was kept in a bag. Thereafter, they had gone back to CBI office.
51. PW-3 further deposed that in the CBI office, PW-3 was asked to sit there and he waited there for some some. CBI officials were busy in preparing the documents and accused Dr. Naresh Sharma was also sitting at one place in CBI office. At about 1/1.30 AM the CBI officials brought a bunch of papers (i.e. about 50-60 papers) and PW-3 was asked to sign those papers. When, PW-3 had signed those papers, he was asked to go home and was told that he would be called further when required.
52. During his examination, PW-3 was shown verification memo (D-
2) and he identified his signature at point 'A' on each page of the verification memo exhibited as Ex.PW3/B. He also identified his signature at point 'A' on handing over memo Ex. PW 3/C. He has CC No. 36/2020 CBI Vs Naresh Sharma Page No. 28 of 137 also identified his signature at point 'A' on the handing over memo Ex.PW3/D.
53. PW-3 has further deposed that he went to CBI office two/three times after about 2-2½ months and the CBI officials also got some documents signed from him during his such subsequent visits. On being shown D-16 transcription-cum-voice identification memo and transcription of Q-1 and Q-2, he identified his signature on the transcription-cum-voice identification memo and the transcription, at point A on each page which are collectively exhibited as Ex.PW- 3/E (colly).
54. PW-3 on being shown document D-22 seizure/sealing memo dated 15.10.2019 of mobile phone and printouts of screen-shot of whatsapp chats and whatsapp calls, identified his signatures at point A on each page of the document on the printouts of the screen shot of whatsapp chats and whatsapp calls of mobile number 9599071077 for the period for 14.08.2019 and 16.08.2019 with accused Dr. Naresh Sharma which are exhibited as Ex. PW-3/F (colly) along with certificate u/s 65-B of Indian Evidence Act (part of D-22) exhibited as Ex. PW-3/F-1 also bearing his signature and seal of the company at point 'A'.
55. PW-3 had further deposed that he identified his signature on the brown coloured envelope in open condition taken out from sealed envelope bearing seals of CFSL, CBI having particulars of the case and Exhibit Q-1 at point A. The brown coloured envelope CC No. 36/2020 CBI Vs Naresh Sharma Page No. 29 of 137 exhibited as Ex. PW-3/G containing one memory card of SanDisk 8 GB in its original packing, the paper cover bears the CO 45/2019 and CFSL particulars has been marked as Ex.Q-1. The plastic case containing the memory card is also marked as Q-1 along with CO 45/2019 and CFSL number, the paper cover, plastic case and the memory card contained therein Ex. PW-3/H (colly) are having his signature at point 'A'
56. PW-3 on being played Q-1 in the court has identified his voice at portion A-1 to A-1 and A-3 to A-3 of file 180816_1321. He has also identified his voice (Mark C) and voice of accused Dr.Naresh Sharma (Mark A on the transcript) in Q-1 reflected in transcript Ex.PW 3/E of file 180816_1354 and deposed that during negotiation with accused Dr. Naresh Sharma, he had written on a slip A=1 Lakh, B= 2 Lakh and so on and similarly stated upto E. PW-3 has specifically stated that the transcript Ex.PW3/E contain the portion of conversation in the form of A, B, C, D and E. It is further stated by PW-3 during his examination that bribe amount was to be paid on same day.
57. PW-3 on being played Q-2 having file 180816_1653_01 in the court has also identified voices at Mark A on the transcript of Q-2 of voices and Mark C as his voices. On being further playing files 180816_1754 in Q-2, he identified the voice of accused Dr. Naresh Sharma at Mark A and Mark C on the transcript of Q-2. On being further playing files 180816_1927 in Q-2, he identified voices at Mark C on the transcript of Q-2 as his voices.
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58. On further playing file 180816_1951 in Q-2, PW-3 identified voice of accused Dr. Naresh Sharma at Mark A on transcript of Q- 2 and Mark C as his voice. On further playing files 180816_1953 in Q-2, PW-3 identified voice of accused Dr. Naresh Sharma at Mark A on the transcript of Q-2 and Mark C as his voices. On further playing files 180816_1954 in Q-2, PW-3 identified voice of accused Dr.Naresh Sharma at Mark A on the transcript of Q-2 and Mark C as his voices.
59. On further playing files 180816_1955 in Q-2, PW-3 identified voices of accused Dr. Naresh Sharma at Mark A on the transcript of Q-2 and Mark C as his voices. He has further deposed that these are the recordings of the time when he sat in the vehicle of accused Dr. Naresh Sharma, till accused was apprehended by CBI.
60. PW-3 further deposed that telephonic conversation was recorded in DVR as mobile was kept on speaker mode and telephonic conversation was through whatsapp call.
61. PW-3 has further deposed that in the year 2019, he was having mobile no. 9599071077 provided by his office for his official use. He identified his mobile phone as Ex. PW 3/J which was produced in sealed condition in the envelope Ex. PW 3/I bearing his signature at point 'A' bearing particulars of the case.
62. PW-3 has further deposed that annexure A of handing over memo CC No. 36/2020 CBI Vs Naresh Sharma Page No. 31 of 137 Ex. PW 3/C (D-4) are the numbers of currency notes which he had produced in CBI office which were noted down in his presence. PW-3 identified the currency notes when shown in the court after tallying the numbers from annexure as Ex. PW 3/K and also identified accused Dr. Naresh Sharma correctly in the court.
63. During his cross examination, PW-3 has stated that written confirmation issued to the company was at the address of plot No. 100, Kundli, Sonepat, Haryana and plot No. 118-G was not mentioned in the written confirmation. PW-3 has further acknowledged that separate drugs manufacturing license is required for each premises where drugs are manufactured. PW-3 has stated that company was having drug manufacturing license for plot No. 118-G, Kundli, Sonepat. PW-3 has further stated that premises of company i.e. plot No. 100 and 118-G, Kundli Sonepat, Haryana is one premise. PW-3 however, stated that he has not furnished the details thereof. The license which was renewed from 15.12.2016 to 14.12.2021 is exhibited as Ex.PW3/DA having address of Plot No. 100. The list of API to be manufactured is exhibited as Ex.PW3/DB. PW-3 has acknowledged the fact that written confirmation was required by overseas customers.
64. PW-3 expressed his ignorance that application for renewal of written confirmation was required to be cleared within 30 days by office of DCGI, as per rules. PW-3, however, has stated that accused Dr. Naresh Sharma had made a call to the MD of the company in this regard and sent an email from CDSCO from the CC No. 36/2020 CBI Vs Naresh Sharma Page No. 32 of 137 office. PW-3 has further stated during his cross examination that MD of his company called him in his office on 13.08.2019, at around 04:00 PM and told that he received a call from accused Dr. Naresh Sharma. During cross-examination accused Dr. Naresh Sharma disputed the visit made by the complainant in FDA Bhawan on 14.08.2019 and 16.08.2019, however, PW-3 brought the original gate pass dated 14.08.2019 and 16.08.2019 issued by FDA Bhawan which are exhibited as Ex.PW3/DD-1 and Ex.PW3/DD-2. It is important to note that gate pass is issued as per record at 02:17pm and recording of conversation in between PW-3 and accused Dr. Naresh Sharma, started around 02:21pm which is a matter of record as reflected from transcript Ex.PW3/E.
65. During cross-examination recorded conversation Q-1 and Q-2 were again played and PW-3 identified his voice in the said recording. PW-3 has further stated that when he went to CBI office on 16.08.2019, his MD Sanjeev Goel had also accompanied him. It is further stated that Sanjeev Goel remained in CBI office till 9/9:30pm but he had not seen him at FDA Bhawan. PW-3 has further corroborated the fact that he identified the voice of accused Dr. Naresh Sharma in the recorded audio conversation. PW-3 acknowledged the fact that written confirmation was received later on. Copy of written confirmation is 'Mark PW3/DC' and original of written confirmation dated 16.10.2020 is Ex.PW3/DD-3. PW-3 has stated that this written confirmation was not issued on plot No. 118/G Kundli, Sonepat, Haryana. PW-3 has further stated that application for written confirmation was for both the addresses i.e. CC No. 36/2020 CBI Vs Naresh Sharma Page No. 33 of 137 plot No. 100 and plot No. 118G and when written confirmation was issued only at the address of plot No. 100 then an e-mail exhibited as Ex.PW3/DD4 was sent by his department to CDSCO and reply to this mail received from CDSCO is Ex.PW3/DD5.
66. It is important to mention here that besides the above mentioned cross examination, there is no cross examination of PW-3 done by accused on the aspect of he sat in the car of accused and had offered money to accused and had not accepted by him or received by him in his hand but he had indicated that he placed it on the dash board. There is no cross- examination on the aspect of accused being caught red-handed at the spot and recovery of bribe money from the dash board of car of the accused at the spot itself and accused being apprehended by CBI thereafter. It is also important to mention here that there are even no suggestions given by and on behalf of accused in this regard.
67. At the outset, it is mentioned as per charge-sheet that there are allegation that Sanjeev Goel i.e. owner of M/s Sterile India Pvt. Ltd., who is PW-12 and Trivendera Kumar Rajput, employee of Sanjeev Goel, who is also PW-3 were requiring written confirmation for their business for which CDSCO office was the government agency through which it was to be granted. It has also been alleged that in furtherance thereof they met and talked with accused Dr. Naresh Sharma, who was Deputy Drugs Controller in Central Drugs Control Organization, FDA Bhawan. In this regard, CC No. 36/2020 CBI Vs Naresh Sharma Page No. 34 of 137 accused Dr. Naresh Sharma being in the capacity of the concerned person who has to grant or refuse the written confirmation had demanded Rs. 5 Lakhs and later on agreed to accepted Rs.4 Lakhs to do the job. Complaint Ex.PW3/A is stating all these facts. PW-3 Trivender Kumar Rajput and PW-12 Sanjeev Goel have corroborated these facts and it is reflected from the evidence led by prosecution in this regard which is in the form of statement of PW- 3 and PW-12 and their examination in the court that accused Naresh Sharma has demanded from them.
68. Proceeding further, considering the procedure adopted by CBI in case they receive any complaint regarding demand of illegal gratification and laying traps for the same, it is incumbent upon the CBI that pre-trap proceedings should be initiated which includes verification of the complaint filed by the complainant.
69. In this regard, reference can be laid upon one judgment passed by the Hon'ble Supreme Court long back in the year 1970 titled as P. Sirajuddin's case (P.Sirajuddin Vs. State of Madras, AIR 1971 SC 520) wherein it is held that the before laying the trap, there must be suitable preliminary enquiry into allegations of the complainant. Such verification would include examination of the complainant, discrete verification of allegations contained in the complaint and bonafides of the complainant. This would ensure that the trap would be a legitimate one and not illegitimate.
70. As per charge-sheet, pre trap proceedings have been undertaken in CC No. 36/2020 CBI Vs Naresh Sharma Page No. 35 of 137 the present case before laying trap for accused Dr. Naresh Sharma. PW-3 has been part of pre-trap proceeding as well as post trap proceedings including apprehension of accused. His testimony has been discussed at length in above mentioned paras.
PRE-TRAP PROCEEDINGS
71. PW-3 has categorically stated that he had given a complaint Ex.PW3/A which is stated to have been verified by the CBI officials.
72. In this regard, PW-9 has been examined by prosecution, who has deposed that, on 16.08.2019, on the instructions from personnel branch DDA, PW-9 Subhankar Chatterjee, Asstt. Director, DDA reached CBI office and met duty officer there. He has further deposed that one SI Umesh Kumar came and took him to his chamber where complainant Trivender Kumar Rajput was present. He was introduced to him and briefly told about his grievance of demand of money from him for renewal of license of his company from FDA office by accused Dr. Naresh Sharma (Deputy Controller of Drugs) and was also shown written complaint.
73. PW-9 has deposed that a team was constituted for the verification of the complaint consisting of SI Umesh Kumar, SI Vinod Kumar, complainant and himself, one new DVR and new memory card was also procured which was opened and it was ensured that DVR and memory card were empty in which their introductory voices were CC No. 36/2020 CBI Vs Naresh Sharma Page No. 36 of 137 recorded in the said DVR. Thereafter, verification team left at about 01:100 pm from CBI office for FDA Bhawan for verification of the complaint and reached at FDA Bhawan within 15-20 minutes where vehicle was parked at some distance from FDA Bhawan. DVR was switched on and it was placed in the pocket of the complainant. PW-9 and complainant, were directed to go to the FDA office for a meeting with accused Dr. Naresh Sharma. They went to FDA office at reception counter where they were told that they can meet the accused after lunch. He has deposed that thereafter they came outside and went to CBI team waiting in car and the DVR was switched off. They again went to FDA Bhawan after lunch at about 2.00 PM and the DVR was again switched on and put in the pocket of the complainant and they got appointment to meet accused Dr. Naresh Sharma from the reception and went to meet accused in his office which was upstairs.
74. After reaching the office of accused Dr. Naresh Sharma they waited outside and complainant went inside the office and remained in the office for about 45 minutes. It is important to mention here that the transcription Ex.PW3/E (colly.) explain that PW-3 remained at reception for about 25 minutes and then went to chamber of accused after 02:17pm and came back at around 02:45pm on 16.08.2019. Complainant came out of the office and went towards vehicle of CBI which was parked outside FDA Bhawan. DVR was again switched off and complainant briefly narrated the conversation to CBI which had taken place inside the office of accused Dr. Naresh Sharma. Thereafter, CBI team left for CBI CC No. 36/2020 CBI Vs Naresh Sharma Page No. 37 of 137 office where DVR was played and its contents were copied and memory card was sealed in an envelope, after keeping it in its original plastic cover and after putting his signature upon it, PW-9 also signed on the said envelope. Thereafter, the procedure for preparing verification memo exhibited as Ex.PW3/B (D-2) bearing his signature at point 'B' was followed which was prepared and read out.
75. PW-9 has further deposed that after verification of the complaint, it was decided that a trap will be laid hence a trap team was constituted being headed by Inspector Raj Saurav and other members of trap team consisting of PW-9, complainant Trivender Kumar Rajput, other independent witness Sh. Ashish Kumar from DDA, SI Umesh Kaushik and SI Vinod Kumar. He further deposed that Trivender Kumar Rajput was asked to arrange the bribe amount of Rs.4 Lakhs and the memory card which was used during the verification proceeding was handed over to Inspector Raj Saurav. He has deposed that complainant arranged Rs.4 Lakhs comprising 200 note in the denomination of Rs.2,000/- from his own source. The serial numbers of the said GC notes were noted down on a paper marked as Annexure - A and he as well as Ashish (PW-17) confirmed the numbers of the GC notes mentioned on the said Annexure.
76. PW 9 further deposed that a new SD card was arranged and inserted in a DVR and it was ensured that it was blank, thereafter, his introductory voice and voice of Ashish (PW-17) were recorded CC No. 36/2020 CBI Vs Naresh Sharma Page No. 38 of 137 in the said SD card. The phenolphthalein powder was arranged from the malkhana and the powder was applied on each and every GC note and it was explained through demo that if any object comes into contact with the phenolphthalein powder then the said object would turn pink in solution of sodium carbonate. Thereafter, a solution of sodium carbonate was prepared and Ashish Kumar was asked to touch the note and dip his hand in the solution, thereafter, after dipping his hand, the solution turned pink. After this demo all the team members washed their hand.
77. PW 9 has further deposed that he was asked to check the complainant that he was not carrying anything except mobile phone, thereafter, the above notes were put by Ashish in the right side pant pocket of complainant and it was further instructed to him and complainant that when the notes were delivered to accused Dr. Naresh Sharma then they both have to give a signal of rubbing their hands on their face and in case this sign was not visible to the team, then they were asked to give a missed call to Insp. Raj Saurav. He has further deposed that he was also directed by the team that he will remain close to complainant and should overhear the conversation in between complainant and accused Dr. Naresh Sharma, if possible.
78. PW 9 has further deposed that at about 06:00 PM complainant was asked to call the accused on his mobile number. The complainant told that accused would take only whatsapp call. The DVR was put in 'on mode' and a whatsapp call was made by complainant to CC No. 36/2020 CBI Vs Naresh Sharma Page No. 39 of 137 accused Dr. Naresh Sharma. The complainant said that as he was at Sonipat, therefore, he needs some time to arrange money and will take 1 to 1 ½ hour to reach FDA Bhawan. Thereafter, a leather bag was arranged in which sodium carbonate, glass, bottle, pieces of cloth and some money were kept.
79. PW-9 has further stated after perusing handing over memo exhibited as Ex.PW3/C and identified his signature at point B on it and at point 'A' of Annexure - 'A' (being part of exhibit Ex.PW3/A) which is Ex.PW9/A, mentioning the serial number of the GC notes. PW 9 has further deposed that at about 07:00 PM CBI team left for FDA Bhawan and reached there. Thereafter, complainant was asked to make a call to accused on his mobile phone. The DVR was switched on and complainant made a whatsapp call from his mobile phone to accused which could not be connected. Whatapp Calls were made many times which were connected for some time but disconnected or not connected.
80. He further deposed that one whatapp call was received from accused on the mobile phone of complainant and accused Dr.Naresh Sharma said that he was in a gym and would take 15 minutes to come out. It is further deposed that accused Dr. Naresh Sharma was called again after some time. After 15 minutes or more, complainant Trivender Rajput made a whatapp call to accused Dr. Naresh Sharma and put the DVR on switch on mode. Accused told the complainant to meet at a petrol pump in between ITO and Pragati Maidan. Immediately, thereafter, another CC No. 36/2020 CBI Vs Naresh Sharma Page No. 40 of 137 whatsapp call was made by complainant Trivender Rajput to accused Dr. Naresh Sharma on which he said to the accused that he has reached near FDA Bhawan. After 5 minutes, accused Dr. Naresh Sharma shared his GPS location with complainant through whatsapp.
81. Thereafter, Insp. Raj Saurav directed the complainant to go to the said location and PW-9 was asked to follow him closely. DVR was kept in complainant's pant pocket in switched on mode. Thereafter, complainant and PW-9 proceeded towards the GPS location sent by accused and he remained at a distance while complainant was ahead of him. He has further deposed that the complainant saw the red colour car of accused and saw the complainant opening the front door (passenger side) of car and sat in the same while accused was on the driver's seat. He has further deposed that the car moved ahead a bit and stopped. He has further deposed that the complainant came out of the car and gave a missed call to Sh. Raj Saurav and thereafter, the trap team proceeded and reached there and apprehended the accused.
82. PW-9 further deposed that DVR, which was inside the pocket of pant of complainant, was taken out and switched off by CBI team. Thereafter, accused was asked to disclose his identity which was disclosed by him. Complainant narrated the entire incident which took place inside the car stating that he has placed the money on the dashboard of the car at the instance of accused and that accused drove car a bit further and asked the complainant to get CC No. 36/2020 CBI Vs Naresh Sharma Page No. 41 of 137 down and call his driver. He further deposed that the complainant was asked by CBI team as to what transpired in the car on which complainant narrated the entire story.
83. PW 9 has further deposed that thereafter, Ashish Kumar (PW-17) recovered the money kept on the dash board of the car, one parking sticker lying beneath the money on the dashboard of the car. Ashish Kumar (PW-17) and PW-9 counted the money and matched serial number of recovered currency from Annexure-A, which was already prepared in CBI office, and found that particulars of recovered currency matched with number of Annexure-A. PW-9 identified his signature at point A-1 on Annexure A, Ex.PW 9/A stating that he put the signature after checking and matching the number of recovered currency. He further deposed that a solution of sodium carbonate was prepared and fresh cloth was taken and the same was rubbed on the dashboard from where the money was recovered and the said cloth was dipped in solution of sodium carbonate and while doing so the said solution turned pink which was poured in a bottle and the bottle was sealed on which PW-9 put his signature.
84. Thereafter, a car search memo was also prepared stating that two envelopes were found, one containing Rs.1 lakh and other containing Rs.1.5 Lakhs, which were also sealed. He has also deposed that a rough site plan was prepared by CBI showing the positions of team members. At that time, as the rain started, it was decided by CBI team that remaining proceedings shall be CC No. 36/2020 CBI Vs Naresh Sharma Page No. 42 of 137 conducted at the CBI office hence they all came back to CBI office at about 09:00 PM.
85. PW-9 further deposed that the memory card in the DVR was taken out and its contents were copied and it was kept it in its original packet on which he put his signature and thereafter it was kept and sealed in an envelope which was signed by him. He has further deposed that personal search of accused was conducted and his mobile phone was also seized by CBI, keeping it in an envelope signed by PW-9. Before seizure of accused's phone, screen shots of whatsapp chat and whatsapp call log with complainant, were taken and sent to the email of SI Umesh Kumar. PW-9 signed on the printouts of the same which were also signed by Ashish Kumar (PW-17).
86. PW 9 has further deposed that parking sticker found on the dash board of car of accused was kept in sealed envelope and was signed by PW-9.
87. PW-9 further deposed that as new memory card was not available, his introductory voice and voice of Ashish Kumar (PW-17) was recorded in internal memory of DVR in which voice of accused was also recorded and thereafter concluding voice of PW-9 and PW-17 was also recorded in DVR and it was sealed in the envelop which was also signed by PW-9 and PW-17 and seal so used was handed over to PW-17 for which memo was also prepared.
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88. PW 9 further deposed that on 23.09.2019, he visited CBI office and met Inspt. H. V. Atri, complainant and PW-17 who were present there. Data so prepared from the memory card was played along with its transcription. After hearing the conversation, PW-9 found it correct and signed the transcription. PW 9 has identified his signature at point 'B' on the recovery memo Ex. PW 3/D, his signature at point 'A' on printouts of screen shots of whatsapp call log and whatsapp chat Ex. PW 9/B (D-8), his signature at points 'A' on car search memo Ex. PW 9/C (D-5), his signature on personal search memo Ex. PW 9/D (D-6) at point 'A', his signature on rough site plan Ex. PW 9/E (D-7) at point 'A'; his signature at point 'B' on transcript-cum-voice identification memo and transcription of Q-1 and Q-2 Ex. PW 3/E (colly.) (D-16).
89. PW-9 has further deposed that he identified his signature at point 'A' on the envelope Ex. PW 9/F containing 200 currency notes in the denomination of Rs. 2,000/- and after tallying the numbers of the currency notes mentioned in annexure Ex. PW 9/A of handing over memo, Ex.PW3/C again in the court on the day of his examination, he identified the same as recovered from dash board of car of accused and stated that the same were also matched by Ashish Kumar (PW-17). PW 9 has further deposed that he identified his signature at point 'A' on the bottle Ex. PW 9/G having cloth piece and stated that it contained dash board wash.
90. PW 9 further deposed that he identified his signature at point 'B' on envelope Ex. PW 3/G which contains memory card Sandisk 8 CC No. 36/2020 CBI Vs Naresh Sharma Page No. 44 of 137 GB marked Q-1 and he also identified paper cover, plastic case and the memory card at point 'B' therein Ex. PW 3/H (colly.). On playing the said card, he identified his voice from portion Y to Y-1 reflected in transcript of Q-1 Ex. PW 3/E (D-16) in file 180816_1249, recorded at the time of verification of complainant on 16.08.2019.
91. PW 9 has further deposed that he identified his signature at point 'B' on the envelope Ex.PW5/H marked Q-2 containing memory card SanDisk 8 GB as well as on the paper cover and its plastic cover Ex. PW 5/I. On playing the said card, he identified his voice from portion X to X-1 reflected in transcript of Q-2 Ex. PW 3/E (D-16) in file 180816_1652, recorded at the time of constitution of trap team and before leaving for the spot on 16.08.2019.
92. PW 9 has further deposed that he identified his signature at point 'A' on envelope Ex. PW 9/H which contained unused parking sticker Ex. PW9/I which bears his signature at point 'A'. He has further identified his signature at point 'B' on envelope Ex. PW 5/M containing DVR and he also identified the same having his signature at point 'B'. On playing of DVR in the court, PW 9 has further deposed that file 180817_0023.mp3 dated 17.08.2018 is having his introductory voice recorded on 17.08.2019 and further file 180817_0024.mp3 dated 17.08.2018 is having introductory voice of Ashish Kumar (PW-17) recorded on 17.08.2019. PW 9 has further deposed that file 180817_0031.mp3 dated 17.08.2018 is having the voice of accused recorded on 17.08.2019.
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93. PW-9 has further deposed that file 180817_0035.mp3 dated 17.08.2018 is having his introductory voice recorded on 17.08.2019 and further file 180817_0035_01mp3 dated 17.08.2018 is having introductory voice of Ashish Kumar (PW-17) recorded on 17.08.2019. PW 9 further deposed that he identified his signature at point 'A ' on the envelope Ex.PW 9/J in which mobile phone of accused was seized and PW-9 identified mobile of accused in the court as Ex. PW 9/K.
94. During his cross examination PW-9 has corroborated whatever he has stated in his examination in chief and no material contradiction has emerged.
95. PW 17 Ashish Kumar working as Asst. Director, DDA, is another witness examined by prosecution, similarly on the line of PW-9. He joined the trap proceedings as independent witness along with another independent witness Subhankar Chatterjee (PW-9) and has acknowledged all the documents regarding the trap proceedings conducted against accused in which PW-17 and PW-9 were part as independent witness.
96. PW 17 has stated that he reached CBI office on 16.08.2019 at 10:00 AM and met with Insp. Raj Saurav at about 04:45 PM, other CBI officials who were introduced with him were Vinod Kumar Mr.Naval, Mr. Nikesh along with one independent witness Subhankar Chatterjee. His testimony is almost similar to PW-9, CC No. 36/2020 CBI Vs Naresh Sharma Page No. 46 of 137 hence not repeated here for the sake of brevity. This witness has stated about the demand of Rs.5 Lakhs by accused Dr. Naresh Sharma from Trivendra Singh Rajput for which, after negotiation complainant agreed to pay Rs.4 Lakhs till 05:00/05:30pm on 16.08.2019.
97. This witness has also deposed regarding arrangement of demanded money in denomination of notes of Rs.2000/-, arrangement and demonstration of phenolphthalein powder, recording of introductory voice in memory card inserted in DVR, instructions issued to complainant for giving a signal to trap team after delivery of bribe amount to accused Naresh Sharma. This witness has further stated that complaint Ex.PW3/C (D-4) bears his signature at point 'C'. This witness has further identified his signature on Ex.PW9/A at point B which is containing the number of currency notes to be carried by complainant on 16.08.2019. This witness has acknowledged the fact that all the calls made to and received from accused Naresh Sharma were recorded in DVR and were also heard by all the team members including me. This witness has also stated that accused Dr. Naresh Sharma had sent a message that he was in a gym and has further shared his location with complainant.
98. PW-17 has further stated that after reaching at the spot, when accused Dr. Naresh Sharma was about to reach in his red colour Wagon R, complainant was asked to go towards him and PW-17 awaited along with other team members at a distance. PW-17 has further stated that after receiving the signal the entire team reached CC No. 36/2020 CBI Vs Naresh Sharma Page No. 47 of 137 at the spot, apprehended accused accused Dr. Naresh Sharma and also inquired from complainant as to what happened in the car for which complainant said that ask him, 'Kitne hain 4' for which complainant confirmed and at the instruction of accused Dr. Naresh Sharma complainant had put the money on dashboard. Money lying on dashboard was picked and checked and it was found matching with the numbers and denomination noted down in Ex.PW9/A.
99. PW-17 put his signature on the recovery memo, the currency notes were sealed in his presence in an envelope on which PW-17 has also signed. PW-17 has further stated that parking slip, which was on dashboard on which currency notes were kept, was checked for phenolphthalein powder and after rubbing a white colour cloth it was dipped in the solution of sodium carbonate, which turned pink. PW-17 has further stated that Wagon R car was searched and two envelopes were found on its back seat containing Rs.1.5 Lakhs and 1 lakh. In the meantime, it started raining so all team members came back to CBI office. All team members stated that recorded conversation were heard at CBI office. Introductory voice of PW-17 and voice of Naresh Sharma were also recorded. Mobile phone of accused was also taken by CBI and screen-shots of all the conversation in between Naresh Sharma and complainant contained in whatsapp in his mobile, were taken. Print out was also taken. All these print outs were stated to be signed by PW-17. PW-17 was again called on 23.09.2019 and Shubhankar Chatterjee and compliant were also present there.
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100. PW-17 has stated that all the conversation in between complainant and Naresh Sharma were played. Transcription was signed by all the persons present there. PW-17 had identified recovery memo Ex.PW3/D, screen shots of whatapp calls and whatsapp chat Ex.PW9/D, car search cum seizure memo Ex.PW9/C, arrest -cum-personal search memo Ex.PW9/D, rough site plan Ex.PW9/E and transcription cum voice identification memo and transcript Q-2 already Ex.PW3/E (D-16). PW-17 also identified the currency notes in denomination of Rs.2,000/- totaling to Rs.4 lakhs shown to him in the court stating that these currency notes were recovered from the dashboard of the car of the accused.
101. Recorded conversation Q-2 was also played in the court in the presence of PW-17. PW-17 identified voice of accused Dr. Naresh Sharma as well as his voice. PW-17 also identified parking sticker of Ministry of Railways for which he said that it was recovered from the dashboard of the car of accused on which bribe amount was kept/lying. PW-17 also identified the mobile phone make Apple of accused Dr. Naresh Sharma.
102. During his cross examination, PW-17 has corroborated all the facts that he was independent witness and part of CBI team PW-17 has also corroborated the fact that he was read over the contents of the complaint. He has also corroborated the fact that he had overheard the conversation in between complainant and Naresh Sharma was also been recorded in DVR. Besides this he CC No. 36/2020 CBI Vs Naresh Sharma Page No. 49 of 137 has also corroborated the fact that complainant had gone to meet accused Dr. Naresh Sharma on 16.08.2019 and accused Naresh Sharma was apprehended on the spot and bribe money of Rs.4 Lakhs were also recovered from his car and the bribe money was picked by him. Thus, no material contradiction has emerged.
103. The next witness examined by prosecution is PW 16 Inspt. Umesh Kaushik. He was working as SI ACB in the year 2019, who was called by the then SP and the present complaint was marked to him for verification. He is the person who has verified all the contents of the complaint that accused Dr. Naresh Sharma had demanded Rs.5 Lakhs from MD of company for written confirmation. PW-16 has stated that on 14.08.2019, complainant had met with Naresh Sharma in his office who had asked him to pay a bribe of Rs.5 Lakhs. PW-16 arranged independent witnesses, new memory card and DVR, other CBI officials. PW-16 has stated that date on the DVR was inadvertently set one year prior to the current date, however, date and month were same.
104. PW-16 further stated about recording of introductory voice of witness in the DVR. He further acknowledged that for verification they proceeded to the office of accused Dr. Naresh Sharma. He had also instructed the independent witnesses to remain with complainant and should hear the conversation in between complainant and Naresh Sharma. After the meeting of complainant with Naresh Sharma they came back and upon inquiry complainant said that Naresh Sharma demanded the bribe money in CC No. 36/2020 CBI Vs Naresh Sharma Page No. 50 of 137 code words A, B, C, D...... i.e. A means 1 Lakh, B means 2 Lakh and so on. Complainant stated that he asked accused Dr. Naresh Sharma that 'E' was much higher and after negotiation accused Dr. Naresh Sharma agreed for D i.e., Rs.4 Lakhs. Entire conversation in between complainant and Naresh Sharma was recorded in DVR which was later on heard by all the team members. All the recorded conversation Q-1 was, thereafter, sealed in the manner as stated by other witnesses mentioned above.
105. PW 16 has identified the verification memo Ex. PW 3/B (D-
2) bearing his signature at point 'C' and of SI Vinod Kumar at point 'D'. He has also identified signature of his SP at point X on the first page and endorsement marking the complaint to him at point 'Y' for verification on the complaint Ex. PW 3/A (D-1) for verification.
106. PW 16 is also stated to be part of trap team which was constituted for laying the trap for accused Naresh Sharma as per directions of SP in consultation with TLO Raj Saurabh and other trap team members consisting of Inspt. Harish Chander, Inspt. Nikesh Upadhayya, Inspt. Kuldeep Sharma, two independent witnesses Subhankar Chatterjee and Ashish Kumar from DDA, complainant including PW-16 besides other members.
107. PW 16 has deposed that complainant produced Rs.4 lakhs in the denomination of currency notes of Rs.2,000 each and deposed about the pre-trap proceedings wherein handing over memo Ex.PW CC No. 36/2020 CBI Vs Naresh Sharma Page No. 51 of 137 3/C (D-4) having his signature at point 'D' and Annexure Ex. PW 9/A its part at point 'C' and also deposed about the trap proceedings conducted at the spot. PW-16 stated that when accused Dr. Naresh Sharma was apprehended on the spot, complainant was asked by TLO in his presence about conversation taken place in between complainant and accused for which complainant said that accused had asked him "kitne hae Chhar hae" for which complainant had placed the money on the dash board of car as per your direction.
108. PW 16 has identified his signature on the recovery memo Ex.PW3/E (D-9) at point 'D, screen-shots of whatsapp and whatsapp calls Ex. PW 9/B (D-8) taken from your mobile through his e-mail ID and certificate under Section 65-B Evidence Act Ex. PW 16/A (part of D-8) given by him having his signature at point 'A' . He has also identified his signature at point 'D' on the envelope Ex. PW 3/G used for keeping Q-1 memory card Ex. PW 3/H (colly) used in verification proceeding by him having his signature at point 'D'. PW-16 further deposed that accused was arrested at around 10 PM vide arrest memo signed by accused, TLO, independent witness and such proceedings continued till 3.30 AM night.
109. During his cross examination, no material contradiction has emerged and PW-16 has corroborated whatever he has stated in his examination in chief.
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110. Next witness examined by prosecution is PW 8 Inspector Sunil Kumar, CBI who has deposed that on 15.10.2019, he was called by Inspt. H. V. Attri for extracting whatsapp chat from the mobile of complainant which was produced to him. On putting the said mobile in on mode, he took screen shots and thereafter by connecting it to the computer of CBI, printouts were taken and document D-22 (totaling 9 pages), one memo Ex. PW 3/F (colly.) were prepared which bears his signature at point 'C' and separate memo with regard to the said proceedings Ex. PW 3/F (2 pages bears his signature at point 'B'). He has further deposed that he gave certificate under Section 65-B of Indian Evidence Act as Ex. PW 3/F-1 bearing signature of complainant at point 'A' on certificate and mobile thereafter was switched off before putting in brown envelope sealed with seal of CBI. He has identified yellow envelope Ex. PW 3/I bearing his signature at point 'C', sealed with court seal and on opening it mobile phone Ex. POW 3/J is also identified stating that from mobile he has taken all screen shots.
111. During his cross examination, no material contradiction has emerged and PW-8 has corroborated whatever he has stated in his examination in chief.
112. With regard to facts pertaining to taking of whatsapp chat from the mobile of complainant prosecution has examined PW-7. PW-7 Manbar Singh Negi has deposed that in the year 2019, he was posted as Section Officer in EPFO Head Quarter, Bhikaji Cama Place, New Delhi and on the instructions of his senior CC No. 36/2020 CBI Vs Naresh Sharma Page No. 53 of 137 officers, he visited the CBI office in the month of October of 2019 and met duty officer and was asked to meet some CBI officer. He has deposed that there were two CBI officials and one person namely Mr.Rajput who produced one mobile phone, thereafter one of the CBI officer took out the printout of whatsapp chatting and call details from the said mobile, thereafter the said mobile phone was sealed in an envelope and the said seal used for sealing the said envelope was handed over to him and he has produced the seal in the court which was taken on record as Ex. PW 7/A.
113. PW-7 has identified his signature on seizure/sealing memo already exhibited as Ex.PW 3/F (colly.) (D-22), at point 'A', 'A-1' and 'A-2' on both pages of the said memo and point 'A-2' in the acknowledgment of receiving the said seal. He identified his signatures at point 'B' on printout of whatsapp chat and whatsapp calling record, part of Ex.PW3/F (colly.) (D-22). He identified his signatures on envelope Ex.PW3/I at points 'B' on front and back side of the envelope.
114. During his cross examination PW-7 has stated that the print out of whatapp chat was taken through a printer in his presence. No material contraction has emerged from cross examination of this witness and he has corroborated whatever he has deposed in his examination in chief.
115. With regard to establishing the fact that mobile numbers as mentioned in the charge-sheet were actually used by complainant CC No. 36/2020 CBI Vs Naresh Sharma Page No. 54 of 137 and accused Dr. Naresh Sharma prosecution has examined PW-2, 4 and 6.
116. PW-2 Pawan Singh is the Nodal Officer, Vodafone Idea Ltd., since 2005. He deposed that in September, 2018 the company Vodafone got merged with Vodafone Idea Ltd. He further deposed that he had received a notice from CBI, ACB, New Delhi whereby CBI demanded CAF, location chart, CDR and Certificate u/s 65- B of Evidence Act and he had forwarded the relevant documents to CBI.
117. PW-2 identified his signatures at point A on forwarding letter dated 16.10.2019 along with seal of company and had forwarded the requisite documents pertaining to mobile no. 9899078956 through this letter exhibited as Ex. PW-2/A to CBI.
118. PW-2 further stated that page no.2 and 3 of D-24 is a certified copy of Customer Application Form (CAF) in name of accused Dr.Naresh Sharma. He further deposed that the customer had submitted copy of PAN card, DL and voter ID card along with this form. He also deposed that the certified copy of documents are available on the back side of the CAF and that the customer had applied for mobile number on 04.04.2007.
119. PW -2 deposed that accused Dr. Naresh Sharma was allotted mobile number 9899078956. PW-2 further deposed that certified copy of CAF and copies of documents are exhibited as Ex. PW-2/B CC No. 36/2020 CBI Vs Naresh Sharma Page No. 55 of 137 (colly) bearing his signature at point A along with seal of company. The original CAF is exhibited as Ex.PW2/B (colly.) (OSR).
120. PW-2 identified Call Detail Record of mobile No. 9899078956, exhibited as Ex.PW-2/C(colly) (D-24), duly certified by him, belonging to accused Dr.Naresh Sharma for the period 10.08.2019 to 16.08.2019. Certificate u/s 65-B of Indian Evidence Act in respect of the CDR of mobile number 9899078956 (page no. 8 of D-24) belonging to accused Dr.Naresh Sharma for the period 10.08.2019 to 16.08.2019 is exhibited as Ex. PW-2/E.
121. PW-2 identified location chart of mobile number 9899078956 (page nos.9 & 10 of D-24) belonging to accused Dr. Naresh Sharma for period 10.08.2019 to 16.08.2019, exhibited as Ex.PW-2/D (colly) obtained by him from computer system, duly signed and certified by him on each page along with official seal of company. The certificate under Section 65-B of Indian Evidence Act in respect of the cell ID chart in respect of mobile No. 9899078956 is exhibited as Ex.PW2/F.
122. PW-4 has deposed that he was working as Alternate Nodal Officer, Reliance Jio since 2018 and was asked by CBI to provide the CAF, call detail, CDR and Cell ID chart of mobile no. 9811099604 pursuant thereto he had provided the above document to CBI. On being shown the letter dated 27.11.2019 (D-25) Ex. PW 4/A, PW-4 identified his signature on the said letter at vide which he had handed over the above documents along with CC No. 36/2020 CBI Vs Naresh Sharma Page No. 56 of 137 certificate under Section 65 B of the Indian Evidence Act. He has further deposed on being shown Computer Print out of CAF of mobile number 9811099604 (part of D-25) Ex.PW4/B that the said mobile number was issued in the name of Sh. Sanjeev Goel and bears his signature with official stamp at point 'A' on the said CAF.
123. PW-4 on being shown the Computer Print out of CDR for the period 10.08.2019 to 16.08.2019 of mobile number 9811099604 (part of D-25) Ex. PW 4/C, identified his signature with official stamp at point 'A' and certificate of Section 65-B of the Indian Evidence Act issued by him (part of D-25) exhibited Ex. PW 4/D, bears his signature with official stamp at point 'A', which is with regard to the above CDR and CAF. He has also provided Cell ID Chart of mobile number 9811099604 (part of D-
25) Ex. PW 4/E bearing his signature with official stamp at point 'A' on the said Cell ID Chart.
124. PW-6 deposed that he is working as Nodal Officer in Bharti Airtel Ltd. since Jan. 2019 and provided the CDR, CAF and Cell ID Chart to the CBI. On being shown letter dated 21.10.2019 exhibited as Ex. PW 6/A, identified his signature at point 'A vide which he had handed over above documents of mobile no. 9599071077 to Sh. H. V. Attri, Inspector CBI. Further on being shown Customer Application Form (CAF) along with copy of documents, i.e. PAN Card and Telephone Bill of Sterile India Pvt. Ltd., and PAN Card of Sanjeev Goyal, he deposed that CAF CC No. 36/2020 CBI Vs Naresh Sharma Page No. 57 of 137 bearing mobile no. 9599071077 was issued to the firm Sterile India Pvt. Ltd. and Sh. Sanjeev Goyal was the authorized signatory on the above said form. He has identified his initial along with company stamp at point 'A' which are Ex.PW 6/B (colly.) He has also proved copy of CDR of mobile no. 9599071077 Ex. PW 6/C (colly.) for the period 10.08.2019 to 16.08.2019 having his initial at point 'A'.
125. He has also proved Cell ID Chart of Delhi NCR Circle of mobile no. 9599071077 Ex. PW 6/D by identify his signature along with official stamp at point 'A', official stamp at point A-1. He identified his signature on Certificate Ex. PW 6/E under Section 65-B of Indian Evidence Act relating to CDR Ex. PW 6/C. He has also proved another Cell ID Chart of mobile No. 9599071077 for the above said period along with certificate under Section 65-B of Indian Evidence Act as Ex. PW 6/F and Ex. PW 6/G.
126. PW-4 has not been cross examined by accused and it is reflected that no material contraction has emerged in the deposition of PW-2 and 6 and they have corroborated whatever they have stated in their examination in chief.
127. As per charge-sheet all the recorded conversation as well as wash of phenolphthalein powder has been sent to CFSL for expert opinion. In this regard, CBI has examined witnesses PW-15, PW-5 and PW-10.
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128. Prosecution has examined PW 15 P.K. Gottam, Principal Scientific Officer (Photo), CFSL New Delhi in this regard who is stated to have prepared copies of the exhibits. He deposed that a request was received from SP, CBI for preparation of copies in Director office CFSL, later it was received in photo division through HOD Photo Division with exhibits Exhibit Q-1, Q-2 and DVR which was marked to PW-15 by HOD photo division and thereafter, he sent the letter to case section for opening the case file and he prepared six copies from the aforesaid exhibits. Each copy contains the data Q-1, Q-2 and DVR and after preparing the copies, exhibits were sealed with his seal which was returned to the forwarding authority, as per procedure.
129. PW 15 further deposed that vide letter dated 11.09.2019 (D-
14) exhibits Q-1, Q-2 and DVR were received by R.K. Meena, Case Assistant, as per instructions of PW-15 vide his signature at point 'A'. PW-15 identify his handwriting at point 'X' on the letter Ex.PW15/A. PW-15 further deposed that vide letter dated 27.09.2000 signed by N. B. Bardhan, Director, CFSL at point 'A', Ex.PW15/B, CBI was informed to collect the above exhibits and copies.
130. PW 15 has identified white envelope having his seal 'P. K. Gottam, PSO (Principal Scientific Officer)' Ex. PW 5/E which also contained the CFSL number CFSL 2019/E-808/RC 29-A/2019 DLI/MR-1 Memo-I, Sl. No. 1, Photo Division 350/19 and Parcel No.1/Ex. Q-1 in his handwriting. He has further deposed that CC No. 36/2020 CBI Vs Naresh Sharma Page No. 59 of 137 Ex.Q-1 was sent to the SP CBI ACB New Delhi with his seal on the said envelope which contain a brown envelope Ex.PW3/G and he identified his signature at point 'C' on the said envelope and that he put CFSL number CFSL-2019/E-808 at point 'X' on the said envelope.
131. He also identified 8 GB memory card of SanDisk, Q1, in its plastic & paper cover packing Ex.PW3/H (colly) contained in the said brown envelope having his signature at point 'C' on paper cover and plastic cover, memory card. Similarly, he has identified white envelope having his seal P. K. Gottam, PSO (Principal Scientific Officer) Ex.PW 5/G which also contained the CFSL number CFSL 2019/E-808/RC 29-A/2019 DLI/MR-1 Memo-II Sl. No. 3 Photo Division 350/19 and Parcel No. 2/Ex. Q-2 in his handwriting. He has further deposed that Ex.Q-2 was sent to the SP CBI ACB New Delhi with his seal on the said envelope which contain a brown envelope Ex. PW 3/H and he identified his signature at point 'C' on the said envelope and that he put CFSL number CFSL-2019/E-808 at point 'X' on the said envelope.
132. He also identified 8 GB memory card of SanDisk, Q2, in its plastic & paper cover packing Ex.PW5/I (colly) contained in the said brown envelope having his signature at point 'C' on paper cover and plastic cover, memory card. Further, he has also has identified white envelope having his seal P. K. Gottam, PSO (Principal Scientific Officer) Ex.PW5/K which also contained the CFSL number CFSL 2019/E-808/RC 29-A/2019 DLI/MR-1 CC No. 36/2020 CBI Vs Naresh Sharma Page No. 60 of 137 Memo-II Sl. No. 5 Photo Division 350/19 and Parcel No. 3/Ex. DVR in his handwriting. He has further deposed that Ex. Q-1 was sent to the SP CBI ACB New Delhi with his seal on the said envelope which contain a brown envelope Ex.PW3/L and he identified his signature at point 'C' on the said envelope and that he put CFSL number CFSL-2019/E-808 at point 'X' on the said envelope.
133. He also identified DVR Ex. PW 3/M contained in the said brown envelope having his signature at point 'C' and CFSL number of the case. He has also identified his specimen seal P. K. Gottam on paper slip already Ex. PW 5/C. He has also identified his signature at point already mark 'A' and his official stamp below his signature on the paper slip having specimen of his seal Ex. PW 5/C.
134. During his cross-examination, PW-15 has stated that no masking, deletion or insertion has been done at the time of preparation of copies of the exhibits. It is stated that he took about 12 days in the entire process for the reason that he was having other work at his disposal. PW-15 categorically stated that he had not created any additional copies except the requisite copies mentioned in his examination in chief. It is reflected that no material contraction has emerged from the cross examination of PW-15.
135. Next witness examined by prosecution is, PW-5 Mukesh CC No. 36/2020 CBI Vs Naresh Sharma Page No. 61 of 137 Kumar Jain who has deposed that he was working as Senior Scientific Officer Gr-II Physics-cum-Assistant Chemical Examiner to the Government of India, CFSL, CBI New Delhi. He has deposed that in the present case exhibits, i.e. Q-1, Q-2 and one DVR were received in Physics Division on 11.10.2019 by Mr.Sunil Kumar, Lab Assistant and the case was assigned to him by HOD of Physics Division which he received in sealed condition from the said Lab Assistant with seal of P.K. Gottam, PSCO, CFSL CBI New Delhi.
136. PW-5 deposed that exhibits were sent to CFSL by CBI for expert opinion vide letter dated 11.10.2019 (D-17) Ex. PW 5/A which was received by Sh. Mithlesh Kumar Jha case assistant bearing his signature at point 'A'.
137. PW-5 has provided his forensic voice examination report as Ex. PW 5/B (colly.) bearing his signature at point 'A' and official stamp at point 'B'
138. PW-5 has identified the specimen seal of Sh. P. K. Gottam on paper sheet bearing signature of P. K. Gottam at point 'A' Ex. PW 5/C, bearing file number of photo division CFSL/2019/E-808, Specimen Seal RC 29-A/2019 also having mentioned thereon.
139. PW-5 has identified his signature at point 'A' on yellow envelop sealed with seal of court marked as Parcel-I, Ex. Q-1 containing case details CFSL-2010/P-933 RC DAI 2019 (A) 029 CC No. 36/2020 CBI Vs Naresh Sharma Page No. 62 of 137 and the same was sent to SP CBI, ACB New Delhi which is Ex.PW 5/D and he also identified the white envelope found inside the yellow envelope having seal of P.K.Gottam, PSO (Principal Scientific Officer) which was received by him in sealed condition and opened by him and he put his initials at point 'A' Ex. PW 5/E and he also put CFSL number above his signature on it and the said envelope further contains one brown envelope Ex.PW3/G. He has further deposed that he put CFSL number 2019/P-933 Exhibit Q-1 above his initial.
140. The brown envelope Ex. PW 3/H (colly.) contains one 8 GB Memory card of SanDisk Q-1 in its plastic & paper cover packing and he had mentioned CFSL number, exhibit number on the paper cover and plastic cover with his initial. PW-5 also identified his initial at point 'A' on yellow envelope sealed with the seal of court and it was marked as Parcel-2 Ex. Q-2 by his assistant Ms.Anuradha at point 'X'. The envelope containing case details Ex.PW5/F was sent by him to SP CBI and on opening the same it was having another white envelope Ex. PW 5/G having seal of P. K. Gottam, PSO which was received by him sealed with seal of P. K. Gottam and identified his initial on the envelope at point 'A' and he had put his CFSL number on Ex. Q-2 above his signature and containing another envelope of brown colour Ex. PW 5/H having one 8 GB memory card of SanDisk Q-2 in plastic paper cover which is Ex. PW 5/I (colly.).
141. PW-5 also identified his initials at point 'A' on yellow CC No. 36/2020 CBI Vs Naresh Sharma Page No. 63 of 137 envelope sealed with his seal and it was marked as 'Parcel-3' Ex. S-1 by his assistant Ms. Anuradha at point 'X'. The envelope containing case details is Ex. PW 5/J and on opening the same it was having another white envelope Ex. PW 5/K having seal of P. K. Gottam, PSO which was received by him sealed with seal of P. K. Gottam and identified his initial on the envelope at point 'A' and he had put his CFSL number on Ex. S-1 above his signature and containing another envelope of brown colour having silver colour DVR Ex. PW 5/M (colly.), having his initial at point 'A' and CFSL number on it.
142. During his cross examination accused and his counsel pointed out the fact that exhibits in this case as mentioned above were received by PW-5 on 11.10.2019 but were examined by him from 26.02.2021 onwards. PW-5 has stated that he has not seen the exhibits prior to 26.02.2021. PW-5 has stated that Sunil Kumar, Lab Assistant has received the exhibits on 11.10.2019, though acknowledgment regarding receiving on Ex.PW5/A was given by Mithlesh Kumar Jha. Suggestions regarding tampering with exhibits/case property has been denied. PW-5 has categorically stated that no software was found in the DVR which could be used for tampering the information recorded therein.
143. During cross examination, while playing files which were in DVR, it was found that it contained one application file namely Sound Organizer_V2001, while opening Folder No. 2 "FOR_WINDOWS". In this regard, PW-5 has stated that this CC No. 36/2020 CBI Vs Naresh Sharma Page No. 64 of 137 application cannot be used for editing. Contrary suggestions in this regard, have been denied. With regard to identification of voices by different persons, PW-5 stated that examination is done by tagging the voice as A, B, C etc. and later on specific names are assigned after listening the specific voices. It is further stated by PW-5 that, in the present case, transcription was already provided by the IO and there were identification of voices as well. It is stated by PW-5 voice of accused Dr. Naresh Sharma in Q-1 and Q-2 has matched with his sample voice as per his report Ex.PW5/B.
144. Next witness examined by prosecution is PW-10. PW-10 Deepti Bhargava has deposed that she joined CFSL, CBI as Sr. Scientific Officer (Grade-II) Chemistry Division on 05.12.2012 having 13 years experience. She has further deposed that vide letter No. RC-029(A)/2019/9962 dated 11.09.2019, one sealed glass bottle marked as CDBW and sealed envelope marked as unused parking sticker were forwarded by SP, CBI, ACB, New Delhi to Director, CFSL for laboratory examination and expert opinion so received in Chemistry Division under the Supervision of HOD, Chemistry and allotted to her on 18.09.2019.
145. PW-10 has identified copy of letter vide which exhibits were received as Ex. PW 10/A, the letter Mark PW 10/A of CFSL vide which intimation by CFSL was given to CBI for collecting the exhibits and report. PW 10 has also identified her signature on the report Ex. PW 10/B bearing no. CFSL-2010/C-806 dated CC No. 36/2020 CBI Vs Naresh Sharma Page No. 65 of 137 26.09.2019 (part of D-13) at point 'A' and official stamp at point 'B' as the same prepared by her after examination of the case property. She has identified her signature at point 'B' on the bottle Ex. PW 9/G sealed by her after its examination giving mark 'Exhibit- CDBW' in her own handwriting at point X on the said bottle received by her with the letter of CBI.
146. She has also identified the exhibit 'unused parking sticker' Ex.PW9/I kept by her after examination in envelope Ex. PW10/C and her signature on the back of it at point 'B' and sent to CBI. She has also identified her signature at point 'X' on the envelope Ex.PW9/H in which it was received. She has also identified her signature at point 'A' on the envelope Ex. PW 10/D in which she kept her seal impression along with cloth wrapper removed from exhibit bottle CDBW Ex. PW 10/E sent to CBI after examination.
147. During her cross examination, PW-10 no material contradiction has emerged and she has corroborated the facts she has stated in her examination in chief.
148. It is important to mention here that, as per the report of PW-10, presence of phenolphthalein powder on parking sticker was found during examination. This parking sticker is stated to have been recovered from the car of accused Naresh Sharma on which the bribe money was found lying.
149. With regard to the procedure which is required to be adopted CC No. 36/2020 CBI Vs Naresh Sharma Page No. 66 of 137 by CDSCO including copy and circulars as well as fact pertaining to the file of Sanjeev Goel and Trivendra Rajput complainant pertaining to written confirmation, prosecution has examined PW- 11, PW-13, PW-19 and PW-20.
150. PW 11 Mahaveer Singh has stated that he was working as Drug Inspector, CDSCO, and joined Headquarters, New Delhi in March 2017 to May, 2022. He has deposed that accused was posted as Deputy Drug Controller, CDSCO FDA Bhawan and was Incharge of International Cell, during his posting. PW-11 has identified file Ex.PW11/A pertaining to renewal and grant of written confirmation to M/s Sterile India Pvt. Ltd. He has further deposed that files are received in Central Registering Unit and on 6.8.2019 a 'P' number 1448415/19 was generated for the file and thereafter it was marked to him for processing by accused Dr. Naresh Sharma vide signature at point 'A' on 7.8.2019. He has further deposed that vide letter dated 26.07.2019 exhibited as Ex.PW11/B, inspection report and other documents pertaining to issuance of written confirmation was received from CDSCO (North Zone), Ghaziabad which is under the signature of accused Dr. Naresh Sharma at point 'A'.
151. PW 11 further deposed that page no. 146 of file Ex.PW11/A is Written confirmation certificate valid for 3 years, page no. 237 to 243 is inspection report of CDSCO (North Zone), Ghaziabad, page no. 262 dated 16.8.2019 is the check list prepared by him having his signature at point 'A' exhibited as Ex.PW11/C-1 CC No. 36/2020 CBI Vs Naresh Sharma Page No. 67 of 137 and after his noting, file was marked by Santosh Vitthal Rao (PW-
13) to accused Dr. Naresh Sharma on the same day vide noting Ex.PW11/C-2 and thereafter accused Dr. Naresh Sharma made his noting Ex. PW 11/C-3, having his signatures at point 'C' and marking the file to JDC on the same day.
152. He has also identified the signature of accused Dr. Naresh Sharma at point 'B' on the draft Written confirmation exhibited as Ex. PW 11/D prepared by him having his signature at point' A'. He also identified draft written confirmation Ex. PW 11/E having his signature at point 'A' and signature of accused Dr. Naresh Sharma at point 'B'. He has further deposed that two draft confirmations were prepared as out of 15 products only 14 products mentioned in Ex. PW 11/D were approved in India and 1 product mentioned in Ex. PW 11/E is not approved in India.
153. During his cross examination, PW-11 has stated that the time limit for disposal of WC file is 30 days which is mentioned on their website being a public domain. It is further stated that without WC European Union do not allow active pharmaceuticals in their domain. PW-11 has further stated that variation found in the application of WC of M/s Sterile India Pvt. Ltd. was the address at Plot No. 100 as early written confirmation was issued at this address. There was another address i.e. Plot No. 118 G, mentioned in the application.
154. There was no license found to be issued against address Plot CC No. 36/2020 CBI Vs Naresh Sharma Page No. 68 of 137 No. 118 G of M/s Sterile India Pvt. Ltd. PW-11 has further stated that Form 26 is a statutory form for renewal of manufacturing license under Drugs and Cosmetic Act, 1940 and as per rule No. 68 of Drugs and Cosmetic Rules, 1945, if drugs are manufactured of more than one set of premises, a separate application shall be made and a separate license shall be issued in respect of each set of premises. PW-11 has stated that during lunch hours on 16.08.2019, accused Naresh Sharma had gone outside of his office and he was not in his room till 03:00 PM. PW-11 has stated that he met him on 16.08.2019 at around 04:00 PM.
155. PW-13 has stated the procedure, SOP and circulars required to deal with application for renewal of license/written confirmation. PW 13 Santosh Vitthalrao Indraksha has deposed that he was working as Assistant Drug Controller since January, 2017 and since Nov. 2018 till date, he was working in International Cell and accused Dr. Naresh Sharma was head of International Cell at that time.
156. PW 13 has deposed about the procedure followed in issuing Written confirmation certificate authorizing the companies who can export API to European Union and deposed about the procedure of its issuing by CDSCO. On seeing the File D-11 (Ex.PW11/A) he deposed that it pertains to M/s Sterile India Pvt. Ltd., which is engaged in manufacturing of API (Active Pharmaceutical Ingredients) licensed by State Drugs Control Authority, Food & Drugs Administration, Panchkula, Haryana and CC No. 36/2020 CBI Vs Naresh Sharma Page No. 69 of 137 that he has dealt with this file. On seeing page no. 257 (Ex.PW11/B) of the file, he stated that vide letter dated 26.07.2019 the DDCI, North Zone, Mr.Aseem Sahu has sent his recommendation to DCGI for issuance and renewal of Written Confirmation Certificate to M/s Sterile India Pvt. Ltd. and he identified the signature of Mr. Aseem Sahu at point A on the said recommendation letter as he is acquainted with his signatures.
157. PW 13 has deposed accused Dr. Naresh Sharma had assigned this file to Mr.Mahavir Singh (PW-11) vide his initial as 'Dr.Naresh Sharma' at point already Mark A and that Inspector Mahavir Singh reviewed the file and placed the Written confirmation certificate for approval along with his noting (Ex.PW11/C-1) and corroborated the version of PW-11 by identifying his signature on noting Ex.PW11/C-2 at point already Mark B. It is further stated that he has also discussed the issue regarding address of the firm with PW-11 and marked the file to accused Dr. Naresh Sharma by his noting at point Y to Y-1, Ex.PW11/C-3 and thereafter accused Dr. Naresh Sharma marked file to Dr. K. Bangarurrajan, Joint Drugs Controller (India) (PW-
20).
158. PW 13 has deposed vide production-cum-seizure memo dated 20.10.2019 (D-19) exhibited as Ex.PW13/A having his signature at point A, he handed over the certified copies of Office Memorandum along with directives 2011/83/EC/European Parliament and Standard Operating Procedures (SOP) exhibited as CC No. 36/2020 CBI Vs Naresh Sharma Page No. 70 of 137 Ex. PW 13/B (colly.) signed by him along with his official stamps at point A to Sh. H.V. Atri, Inspector CBI. He further deposed that the said SOPs are to be followed while processing the file pertaining to written confirmation. PW 13 has correctly identified you in the court.
159. During his cross-examination, PW-13 stated that on 14.08.2019 official timing in their office i.e. FDA Bhawan is 09:30am to 12:30pm because of security arrangement due to 15 th, August. It is stated that on 14.08.2019, their office i.e. FDA Bhawan was closed after 12:30pm. PW-13 has further stated that on 16.08.2019, Naresh Sharma left his office at 12:30pm and came back at 04:15/04:30pm and he was not present in his office.
160. This witness was recalled for re-examination again and during his re-examination, it is stated by him that normal time of their office is 09:30am to 06:00pm and lunch break is between 01:00pm to 02:00pm. This witness further stated that he can go out of his office during office hours for which no permission is required. This witness was cross-examined by prosecution on certain aspects. PW-13 admitted the fact that whenever any casual leave is taken it is to be intimated and when any person do not come in office during pre lunch and post lunch then half day leave has to be taken as per rules.
161. PW-13 further admitted that if any government official has to go out of office due to personal work then he has to take ½ or CC No. 36/2020 CBI Vs Naresh Sharma Page No. 71 of 137 full day casual leave. PW-13 was not having any record to show that accused Dr. Naresh Sharma was on half day causal leave. PW-13 has acknowledged the fact that on his noting Ex.PW11/C2 dated 16.08.2019, no timing of its preparation is mentioned therein. This witness did not support the story of prosecution that he had not signed the file Ex.PW11/A to accused Dr. Naresh Sharma before 12:30pm. PW-13 has admitted the fact that Deputy Drug Controller is the officer who used to give grade in his APAR (ACR), in the year 2019 his concerned DDC was accused Dr. Naresh Sharma, Dr. Bangarurajan and A.K.Pradhan.
162. During examination of this witness one circular dated 13.08.2019, was placed on record it says that FDA Bhawan will close at 02:00 pm on 14.08.2019 due to celebration of Independence Day.
163. Next witness examined by prosecution is PW-19 Sidharth Sahai. He has deposed that in the year 2010 he has joined CDSCO and in the year 2019, he was posted as Drug Inspector at Headquarters, Delhi in intelligence branch. He has further deposed that in the year 2013, he had formulated the guidelines required for written confirmation for the first time.
164. PW 19 has further deposed that he visited CBI office as per directions of K. Bangarurajan, Joint Drug Controller, CDSCO in the present matter of arrest of accused relating to corruption charges. He has correctly identified accused in the court. PW-19 CC No. 36/2020 CBI Vs Naresh Sharma Page No. 72 of 137 has further stated that he used to report and discuss the matters of CDSCO pending before accused personally, telephonically and through intercom and used to visit the house of accused to discuss the same.
165. PW 19 on seeing file Ex PW 11/A (colly.)(D-11) has identified the signatures of Mrs. K. Bhawani the then ADI at point 'A', Sh.Avinash, Durg Inspector at point 'B', Sh. Arup Chatterjee ADC at point 'C', R. Chander Sheikhar, DDC at point 'D', Dr.Ishwar Readdy, JDC at point 'E' and Dr. G. N. Singh, DCGI at point 'F'. on the note sheet Ex. PW19/A.
166. This witness was found resiling from his statement and when audio recording Q-1 were played he refused to identify the voice of accused, therefore, he has been declared hostile. During his cross- examination by CBI, PW-19 stated that he do not remember whether he talked with accused Dr.Naresh Sharma on 16.08.2019. PW-19, however, stated that accused Dr.Naresh Sharma had not taken long leave in and around 16.08.2019. This witness has identified a note-sheet part of D-11 part of Ex.PW11/A (colly.) which is a proposal of issuance of written confirmation certificate for M/s Sterile India Pvt. Ltd. The note-sheet is Ex.PW19/A. During cross-examination by prosecution on 01.12.2023, in its para No. 20 one question was being asked by prosecution, however, it has been reflected that witness started stating of his own that he has not stated anything relating to M/s Sterile India Pvt. Ltd. and he stated so without hearing the question properly.
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167. PW-19 admitted that he was in regular touch with accused Dr. Naresh Sharma and used to converse with him some time. He had also talked with accused Dr. Naresh Sharma on the day he came to court i.e., on 01.12.2023. Besides, this it is reflected that PW-19 has not supported the story of prosecution on the point of identification of the voice of accused Dr. Naresh Sharma in Q-1 and whatever he has stated in his statement under Section 161 Cr. P.C. to this extent, he has not corroborated the same.
168. Next witness examined by prosecution is PW 20 K.Bangarurajan. He deposed that in the year 2019, he was posted as Joint Drugs Controller, CDSCO, FDA Bhawan, New Delhi. CDSCO used to issue licenses like test license, approval for the new drugs and clinical trials and also issues the written confirmation certificate to the manufactures who complies the good manufacturing practices as prescribed. PW 20 has deposed that he knew accused who was working as Deputy Drug Controller during his tenure and he was looking after Written confirmation division and global clinical trial division.
169. PW 20 has deposed that for the Written confirmation there was a standard operating procedure (SOP) which is to be followed and that the concept of Written confirmation has been elaborated in the European Union Directive number 2001/83/EC number 211/62 EU dated 08.06.2011 for the guidelines of goods manufacturing practices (GMP) for various drugs formulation. PW CC No. 36/2020 CBI Vs Naresh Sharma Page No. 74 of 137 20 further deposed that as per rules, Government of India through its office memorandum number X.110034/43/2012-DFQC dated 12.11.2012 has nominated CDSCO as the competent authority for issuance of Written confirmation, CDSCO has issued 6 SPOs numbering EP-INS-001 to EP-INS-006. PW 20 has further deposed that as per procedure in CDSCO, after receiving WC related matter in the International Cell headed by Deputy Drug Controller, the same is marked to Drug Inspector to examine the same.
170. PW 20 has deposed that if the matter for issuance of written confirmation was found satisfactory, the drug inspector would prepare a draft written confirmation certificate and put the same with his noting for approval to assistant Drug Controller, India of International Cell, who further reviews and examines the matter and then forward the same to the office of Deputy Drug Controller India for his noting. Thereafter, Deputy Drug controller also reviews and examine the matter and forward the same to the office of Joint Drug Controller with his noting.
171. Thereafter, Joint Drug Controller after examining the matter forward the same with his noting to the office of Drug Controller General of India who was the final competent authority to issue Written confirmation certificate or to renew the already issued Written confirmation certificate. PW 20 deposed that the Written confirmation certificate was initially issued for 3 years from the date of issuance and thereafter the same has to be renewed on CC No. 36/2020 CBI Vs Naresh Sharma Page No. 75 of 137 application by the applicant. PW 20 has deposed that Deputy Drug Controller, CDSCO is Head of International Cell and Incharge of issuance of written confirmation matters.
172. PW 20 on seeing file noting D-11 exhibited as Ex. PW 11/A has identified his initials on the note sheet page no. 5 at point 'A' vide which he forwarded the file to Drugs Controller General India on 16.08.2019 and that during the office search by CBI at CDSCO, Kotla Road, New Delhi, the said file was seized by CBI team under his initials at encircled portion at point X-1 on each page of the file D-11. PW 20 deposed that he also handed over certain documents to CBI regarding service particulars of accused and Office Order of suspension of accused vide seizure memo Ex.PW21/C bearing his signatures at point B on each page.
173. PW-20 has deposed that in CBI office, when recorded conversion was played before him, some documents were also prepared in CBI office and he identified voice of accused Naresh Sharma in CBI office and further documents in D-21 Ex.PW21/B prepared in his presence bears his signature at point 'B'.
174. PW 20 has further deposed that around midnight of 16/17 August, 2019, he received a call from his Director (Administration) that he has to come to office as some CBI personnel had come to office at Headquarters, CDSCO, FDA Bhawan, Kotla Road, New Delhi and accordingly he reached there in midnight and accompanied Director (Administration) and besides the file relating CC No. 36/2020 CBI Vs Naresh Sharma Page No. 76 of 137 to M/s Sterile India Pvt. Ltd, two other files were also taken into possession by CBI and a seizure memo was prepared in this regard by CBI. He has identified his signature on the search list Ex. PW14/A at point C and admitted it as correct.
175. PW 20 has identified the recommendation on the endorsement Ex. PW-11/C-3 written by accused Naresh Sharma and that accused used to visit his office for official purpose and also used to call him in his office for official purpose and used to discuss the official matters.
176. PW 20 has deposed that vide production memo Ex. PW- 21/C (D-20) Ex. PW-20/B (colly) personal bio-data of accused Naresh Sharma and certified copy of order dated 25.09.2019 was handed over to the IO and that he had identified accused's voice when it was played before him in the CBI office and he had signed the voice identification memo Ex. PW-21/B (D-21) after understanding the same. PW 20 on hearing the files contained in Q-1 when played in the court, has deposed that it may contain the voice of accused Dr. Naresh Sharma at points X, X-1 to X-11 on the transcribed portion of Q-1, Part of Ex. PW 3/E (colly.).
177. PW 20 on hearing the files contained in Q-2 Ex. PW 18/B when played in the court has deposed that it may contain voice of accused Naresh Sharma at points X-12 to X-58 and it seems to be voice of accused Naresh Sharma on the transcribed portion of Q-2, Part of Ex. PW 3/E (colly.).
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178. PW 20 has further deposed that he was having intercoms and landlines facility at his office and used to converse with his seniors, juniors and colleagues including accused Dr. Naresh Sharma over such phone and he was able to identify their voices at first instance itself whenever he used to converse with them including accused.
179. During his cross examination PW-20, this witness was found not supporting his statement under Section 161 Cr. P.C on certain aspects, therefore, he was allowed to be cross examined by prosecution.
180. During his cross examination by prosecution, PW-20 stated that file D-11 was containing the written confirmation written by accused Naresh Sharma vide his endorsement Ex.PW11/C3. PW-20 also acknowledged that he handed over personalised data and certified copy of order dated 25.09.2019 of accused Dr. Naresh Sharma to IO. PW-20 has further stated that during investigation the recorded conversation containing the voice of accused Dr.Naresh Sharma was played before him and he identified the voice of accused Dr. Naresh Sharma.
181. This witness stated that the audio file which was played before him was for a shorter duration of about 1 or 2 minutes whereas the audio file played at the time of his examination in the court before him, was for a longer duration. PW-20 identified his CC No. 36/2020 CBI Vs Naresh Sharma Page No. 78 of 137 signature on the voice identification memo Ex.PW21/B (D-21). PW-20 also narrated the procedure of keeping on record the adverse remark against the manufacturing companies, who had applied for written confirmation.
182. During his cross examination witness acknowledged the fact that at the time of investigation when recorded audio conversation Q-1 was played, it was containing the voice of Siddharath Malhotra. PW-20 has categorically stated in para No. 23 of his cross-examination conducted on 09.01.2024, that in conversation Q-1, Siddharath Malhotra was talking with accused Dr. Naresh Sharma though witness further stated that audio conversation of one or two minutes was heard by him. Further in para No. 38 of cross examination dated 09.01.2024 after hearing recorded conversation Q-1 at time line 44:10 witness said that it seems to be the voice of accused Dr. Naresh Sharma. He also stated that the conversation was containing the expression 'thik hai sir'.
183. PW-20, at the stage of cross examination while audio conversation were being played before him, was asked to repeat the words uttered by the persons in the recorded audio conversation Q-1 and the witness correctly reproduced the same words as were found in the recorded audio conversation. Similarly, PW-20 after hearing the conversation at time line 46:20, 25:40 to 27:12, 27:13 to 28:10, 28:11 to 28:59, 29:00 to 29:56, 29:57 to 30:57, 30:58 to 31:39, 32:16 to 33:20, 33:21 to 34:33, 34:34 to 36:00 of Q-1, Ex.PW3/E (colly.) (Transcription) said that it seems to be the voice CC No. 36/2020 CBI Vs Naresh Sharma Page No. 79 of 137 of accused Dr. Naresh Sharma.
184. The witness categorically stated that he is able to make out and understand the conversation properly. Similar is the reply given by PW-20 when he heard the recorded audio conversation Q- 2 which is part of Ex.PW3/E (colly.) that it seems to contain the voice of accused Dr. Naresh Sharma and he has been able to make out and understand the conversation properly. PW-20 has stated that during his office hours he used to talk with seniors, juniors and colleagues including accused Dr. Naresh Sharma over phone and intercom and he was able to identify their voice at first instance. Whenever he used to converse with them including accused Dr. Naresh Sharma.
185. During his cross-examination on behalf of accused, PW-20 stated that when the audio was played before him for about 1 or 2 minutes by the IO he has stated that he was not sure that it contained the voice of accused Dr. Naresh Sharma.
186. Besides, the testimony of above witnesses examined by prosecution on the aspect of procedure to be adopted by CDSCO/FDA Bhawan for grant of simple permission, examination of complainant and other independent witnesses as well as some witnesses from FDA Bhawan and witnesses for pre trap proceedings, prosecution has examined other witnesses as well including IO H. V. Attri who had summed up the entire story till filing of charge-sheet.
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187. Prosecution has examined, PW 14 Insp. Raj Kumar, who was authorized by Inspt. Raj Saurabh (PW-18) authorizing him under Section 165 Cr.P.C. for conducting a search in FDA Bhawan on 16.08.2019. PW-14 has stated that he along with SI Mukesh Kumar went to FDA Bhawan and reached there at about 11:45pm on 16.08.2019. He requested Dr. K. Bangarurajan to remain with them as witness during the search for which he agreed. The search started at about 01:30am on the intervening night of 16/17.08.2019. the search was conducted in the presence of Dr. K. Bangarurajan. Office of accused Dr. Naresh Sharma and office of Drug Controller General of India, Room No. 111A was searched. Three files were seized as mentioned in the search list Ex.PW14/A (D-10). PW14 has stated that the documents mentioned in the search list were seized they contained the signature of SI Mukesh Kumar at point 'B', signature of Dr. K. Bangarurajan at point 'C' and signature of Sh. Arun Sharma at point 'D' and also at point 'X' in token of receipt of copy of search list. He identified file Ex.PW11/A seized vide search list Ex. PW14/A and authorization under Section 165 Cr.P.C. as Ex. PW 14/B. This witness has not been cross examined by accused.
188. Next witness examined by prosecution is PW 18 Inspt. Raj Saurabh who has stated that on 19.08.2019, he was posted as Inspector in CBI ACB, New Delhi and was assigned the task of trap lying officer and has deposed about the pre-trap proceedings and post trap proceedings conducted by him and giving CC No. 36/2020 CBI Vs Naresh Sharma Page No. 81 of 137 authorization under Section 165 Cr.P.C. to Inspt. Sandeep Tiwari regarding your house search. PW 18 has identified the complaint Ex. PW3/A (D-1), verification memo Ex. PW3/B (D-2) shown by SP CBI to him. He has identified his signature at point 'E' on handing over memo Ex. PW 3/C (D-4), annexure to the said memo Ex. PW 9/A having his signature at point 'D'. He has also identified his signature at point 'C' on the search memo of the Car Ex. PW 9/C (D-5), on arrest cum personal search memo Ex. PW9/D (D-6) at point 'C', rough site plan Ex. PW9/E (D-7) at point 'C'.
189. He has also deposed about the proceedings conducted relating to screen shots of accused whatsapp and whatsapp call log exhibited as Ex. PW 9/B (D-8) between accused and complainant and his signature on the printouts at point 'C'. He has also identified his signature at point 'E' on the recovery memo Ex. PW 3/D (D-9) and also on the authorization under Section 165 Cr.P.C. Ex. 14/B having his signature and official seal at points A and A-1.
190. PW 18 has also identified his signature at point C on the yellow envelope exhibited a Ex.PW9/F having 200 currency in the denomination of Rs.2,000/- totaling Rs. 4 Lakh Ex.PW 3/K and identified the same after tallying their numbers with annexure Ex. PW 9/A of handing over memo Ex. PW 3/C stating that the same were recovered from the dash board of car of accused and matched by him and Ashish Kumar (PW-17) at the spot.
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191. PW 18 has also identified his signature on the bottle Ex. PW 9/G at point 'D' having cloth piece and deposed that the said cloth piece was used to wipe the dash board of accused's car and it turned pink in the solution of sodium carbonate.
192. PW 18 has also identified his signature on the brown envelope Ex. PW5/H at point 'E' marked as Q-2 and on the memory Card of SanDisk 8 GB in its original packing Ex. PW 5/I, marked as Q-2 having his signature at point 'E'.
193. PW 18 has also identified his signature on the brown envelope Ex. PW 9/H at point 'D' marked as "Exhibit unused parking sticker" on the said sticker Ex. PW 9/I taken out from the brown envelope as point 'D'. PW 18 has also identified his signature on the brown envelope Ex. PW 5/L at point 'E' having DVR Ex. PW 5/M and also identified his signature on DVR taken out from the said brown envelope. PW 18 has also identified his mobile phone Ex. PW 9/K taken out from the brown coloured envelope having caption "mobile phone of Naresh Sharma" Ex. PW 9/J and further stated that it is the same mobile from which screen shots of whatsapp chat and whatsapp call log between accused and complainant Trivender Kumar Rajput were taken out. PW 18 has also identified signature of SP Sudhanshu Dhar Mishra on the FIR Ex. PW 19/A (D-3).
194. PW 18 has also identified his signature on the brown colour envelope Ex. PW 5/H having mention particulars of the case and CC No. 36/2020 CBI Vs Naresh Sharma Page No. 83 of 137 marked as Q-2 at point E and also on plastic packing and paper cover (Ex. PW 5/I Ex. Q-2 Ex. PW18/B memory card having his signature at point 'E'.
195. PW 18 further deposed that concerned file (Ex. PW11/A)(D-
11) was also seized from CDSCO through Raj Kumar (PW-14) vide search list Ex. PW 14/A (D-10) which is also acknowledged by him during his examination in the court.
196. Thus, PW-18 is the TLO who laid down the trap after forming a trap team. PW-18 was made aware of the contents of the complaint and demand of bribe by accused Dr. Naresh Sharma. This narrated all the facts in brief as stated by the above mentioned witnesses, therefore, it is not repeated here for the sake of brevity.
197. During his cross-examination, PW-18 no material contraction has emerged and witness has corroborated whatever he has stated in his examination in chief.
198. The last witness examined by prosecution is PW 21 H. V. Attri. He was posted as Inspector since August, 2015 in CBI, ACB, New Delhi and I.O. of the present case, which was registered on the complaint of Trivendra Kumar Rajput, Senior Manager, M/s Sterile India Pvt. Ltd. vide his complaint dated 16.08.2019. The verification was conducted by Sh. Umesh Kaushik, vide Verification Memo dated 16.08.2019 Ex.PW3/B and that after registration of the case, the investigation was entrusted to Inspector CC No. 36/2020 CBI Vs Naresh Sharma Page No. 84 of 137 Raj Saurabh for laying trap.
199. PW-21 further deposed that on 16.08.2019, trap was laid and accused was apprehended while demanding and accepting the bribe amount of Rs. 4 lakhs in lieu of renewal of written confirmation in respect of M/s Sterile India Pvt. Ltd. and investigation of the case was entrusted to him on 04.09.2019. PW 21 has deposed that during investigation, he sent the exhibits i.e. one sealed bottle containing CDBW, one sealed envelope containing unused parking sticker to chemical division CFSL through a forwarding letter duly signed by S.P. CBI, ACB, New Delhi vide letter dated 11.09.2019 already Ex.PW-10/A and also the exhibits i.e. Q1, Q2 and DVR to photo division CFSL through a forwarding letter duly signed by S.P. CBI, ACB, New Delhi vide letter dated 11.09.2019 already Ex.PW-15/A bearing the signature of Sh. Sudhanshu Dhar Mishra, S.P., CBI, ACB, New Delhi at point A.
200. PW 21 has further deposed that on 20.09.2019, on his direction, Santosh Indraksh, ADC (PW-13), joined the investigation and the documents, i.e. certified copy Ex.PW13/B related to SOP in respect of renewal/issuance of written confirmation were produced by him which were seized production-cum-seizure memo Ex. PW-13/A which also bears his signature at point 'B'. PW 21 he has further deposed that on 23.09.2019, on his direction, complainant Sh. Trivendra Kumar Rajput (PW-3) and both the independent witnesses Sh.Shubhankar CC No. 36/2020 CBI Vs Naresh Sharma Page No. 85 of 137 Chatterjee (PW-9) and Sh. Ashish Kumar (PW-17) joined the investigation and after playing the IO copies of recorded conversation containing in memory card Q1 and Q2, written transcription were prepared in their presence of the transcription- cum-voice identification memo Ex. PW-3/E (colly) and the voices were identified in his presence and the transcripts of the aforesaid voices contained in Q-1 and Q-2 were also signed by them in his presence and by him also. He has identified his signature at point D on the said memo.
201. PW 21 has further deposed that on 01.10.2019, Sh. Sanjeev Goel, owner of M/s Sterile India Pvt. Ltd. joined the investigation and produced the documents pertaining to the appointment of Sh.Trivender Kumar Rajput in M/s Sterile India Pvt. Ltd. and allocation of mobile to him from the said firm, which was used during verification and trap proceedings by the complainant which were seized through the production-cum-seizure memo dated 01.10.2019 Ex.PW12/A bearing his signature at point B and the accompanied documents, Ex. PW-12/B and Ex. PW-12/C. PW 21 has further deposed that after receiving the copies of the exhibits Q1, Q2 and DVR as well as the original exhibits from CFSL, Photo Division, sent for preparation of copies of the exhibits Q1 and Q2 were again sent to CFSL, Physics Division for the voice examination vide forwarding letter dated 11.10.2019 of S.P., CBI, ACB, New Delhi Ex. PW-5/A bearing the signature of S.P. at point A. CC No. 36/2020 CBI Vs Naresh Sharma Page No. 86 of 137
202. PW 21 has further deposed that on 15.10.2019, Sh.Trivender Kumar Rajput again joined the investigation and produced the mobile phone allotted to him by M/s Sterile India Pvt. Ltd. in the presence of independent witnesses Sh. Manbar Singh Negi and Inspector Sunil Kumar and Ex. PW 21/A, the print out of the screen shots of the whatsapp call and whatsapp chat of Sh.Trivender Kumar Rajput with accused, contained in the mobile phone of the complainant, were taken and the same were seized along with the said mobile phone through a memo dated 15.10.2019 which was sealed in an envelope separately sealed with the seal of CBI and the seal was handed over to Sh. Manbar Singh Negi under his receipt, who had made endorsement to the effect of having received the seal, at point A-3 and the memo also bear the specimen seal at point D and his signature at point C, signature of Manbar Singh Negi, Sh. Sunil Kumar and complainant are at points A1, B and A respectively who had signed in his presence and complainant had also given certificate under Section 65-B of Evidence Act Ex. PW 3/F-1 and that they had also signed on the screen shots.
203. PW 21 has identified the yellow envelope Ex PW 3/I, bearing his signature at point 'D' and signature of Trivendra Rajput at point 'A' and signature of Manbar Singh Negi at point 'B' and of Inspt. Sunil Kumar at point 'C' on front and back side in which white and golden colour mobile phone make Vivo Ex. PW 3/J of the complainant was sealed.
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204. PW 21 has further deposed that on 15.10.2019 itself, Sh. K. Bangarurajan, JDC (PW-20), joined the investigation when IO copy of recorded conversation contained in Q1 and Q2 were played before him and after hearing the recorded conversation PW-20 identified voice of accused Naresh Sharma and a voice identification memo, in this respect Ex. PW 21/B was prepared bearing his signature and signature of Dr. K. Bangarurajan at points A and B, respectively.
205. PW 21 has further deposed that PW-20 Dr. K. Bangarurajan had also produced the certified copy of the order of suspension and certified copy of personal bio-data of accused Naresh Sharma, vide production-cum-seizure memo dated 15.10.2019 Ex. PW-21/C. PW 21 has further deposed that he had collected the CAF, CDR and Cell ID. Charts of mobile numbers used by the complainant, Sanjeev Goel and accused Naresh Sharma from the respective Nodal Officer of the service providers which Ex. PW-6/A, PW-6/B (colly), Ex. PW-6/C (colly), Ex. PW-6/D and Ex. PW-6/E respectively.
206. He has further deposed that the letters, CAF, CDR, Cell ID Charts along with certificate under Section 65 B of Indian Evidence Act regarding the service provider Vodafone Idea Ltd. are Ex. PW-2/A, PW-2/B (colly), Ex. PW-2/C (colly), Ex. PW-2/D (colly) and Ex. PW-2/E respectively. He has further deposed that the letters, CAF, CDR, Cell ID. Charts along with certificate under Section 65 B of Indian Evidence Act regarding the service CC No. 36/2020 CBI Vs Naresh Sharma Page No. 88 of 137 provider Reliance JIO Infocom Ltd. are Ex. PW-4/A, PW-4/B,Ex. PW-4/C (colly), Ex. PW-4/E (colly) and Ex. PW-4/D respectively.
207. PW 21 has further deposed that during investigation, the report from the Chemistry Division was collected from CFSL, CBI, Delhi, which bears positive opinion regarding the presence of phenolphthalein powder. The chemical examination report dated 26.09.2019 is Ex. PW-10/B.
208. PW 21 has further deposed that during investigation, he recorded the statements of the witnesses as per their version and the statements were read over to them which they asserted as correct and no addition or deletion was made in that statements and after perusal of statements of witnesses, documents collected during investigation, the contents in the exhibits and the opinion of chemical expert and satisfaction with regard to sufficient evidence available against accused Naresh Sharma, a detailed report along with the material i.e. statements, documents, exhibits, was sent to the C.V.O. of Ministry of Health and Family Welfare for the purpose of obtaining consent for sanction of prosecution of accused and thereafter obtaining the sanction for prosecution from the competent authority and on the satisfaction, after perusal of documents and statement of witnesses, that a case is made out against accused Naresh Sharma, he filed the charge-sheet.
209. PW 21 has further deposed that after filing of the charge- sheet he had received voice examination report from the CFSL Ex.
CC No. 36/2020 CBI Vs Naresh Sharma Page No. 89 of 137 PW 5/B (colly.) and the same was also filed along with application on 26.03.2021.
210. During his cross-examination, PW-21 has corroborated what he has stated in his examination-in-chief and no material contradiction has emerged.
211. After completion of prosecution evidence, statement of accused under Section 313 Cr. P.C was recorded wherein he stated that he is willing to lead his evidence in defence. Accused has examined three witnesses in his defence.
212. DW-1 is examined with regard to the fact that on 24.08.2019, due to Independence Day Celebration, FDA Bhawan used to get closed during post lunch session. DW-2 is examined by accused to prove the fact that on 16.08.2019 he went for Aadhar Card updation at around 01:15pm along with his wife Reena Sharma. DW-3 is Reena Sharma, wife of accused Dr. Naresh Sharma who has been examined to establish the fact that on 16.08.2019, she went for Aadhar Card updation at Axis Bank, Nehru Place and thereafter they went to their home and he left for his office at 03:15pm.
213. DW-1 Mayank Saraswat deposed that he was working Assistant Section Officer in CDSCO and had produced the summoned record i.e. circular dated 13.08.2019, vide which the Office building of FDA Bhawan was ordered to be sealed at 2 CC No. 36/2020 CBI Vs Naresh Sharma Page No. 90 of 137 PM on 14.08.2019 by order of SHO P.S. I.P. Estate in furtherance of Security measures in connection with celebration of Independence Day i.e., 15.08.2019. He further placed on record the attested copy of the circular exhibited as Ex. DW1/A under the signature of Sh.Dileep Kumar Rajput at point A along with the official seal.
214. DW-1 have also brought attested copy of the note sheet of F.No.D.21013/27/2015-DC in respect to compliance of order of Delhi Police along with attested copy of order of the then SHO, I.P. Estate dated 08.08.2019. Both these notesheet and copy of the order are attested by Sh. Dileep Kumar Rajput at point A along with the official seal exhibited as Ex. DW1/B and Ex.DW1/C. DW- 1 had also identified the signatures of Sh.Dileep Kumar Rajput as DW-1 had worked with him and seen him writing and signing during course of his duties. He further deposed that this year as well FDA Bhawan was closed at 12 noon on 14.08.2023.
215. During his cross examination, this witness has however stated that he cannot tell at what time FDA Bhawan was closed on 14.08.2019 and he was not posted at FDA Bhawan in the year 2019.
216. DW-2 Jyoti Shree deposed that she was working as Deputy Manager in Axis Bank, Nehru Place Branch. She further deposed that In the year 2019, DW-2 was working as Assistant Manager at Axis Bank Nehru Place Branch. Witness after perusing the Aadhar CC No. 36/2020 CBI Vs Naresh Sharma Page No. 91 of 137 card updation acknowledgment bearing her initials at point A states that she had put her initials on 16.08.2019 being in the capacity of enrollment officer for Aadhar Card updation. She deposed that Aadhar card of accused Naresh Sharma was updated at around 01:15 pm on 16.08.2019. She further deposed that Naresh Sharma was present there along with Mrs. Reena Sharma. Aadhar Card of Naresh Sharma was updated on the basis of Aadhar Card of Mrs. Reena Sharma and Mrs. Reena Sharma had identified Naresh Sharma. Mrs. Reena Sharma and Naresh Sharma had signed in her presence. She further identified her initials at point A, signature of accused Naresh Sharma at point B and signature of Reena Sharma at point C.
217. During her cross examination, DW-2 categorically stated that applicant/customer came personally in the bank and the acknowledgment was issued on 16.08.2019 at 13:17:14 hours.
218. DW-3 Reena Sharma wife of accused accused Dr. Naresh Sharma deposed that she was working as Deputy Director, Ministry of Railways. She deposed that in the year 2019, she was on CCL from 02.07.2019 to 15.05.2020 vide sanction order bearing No. ERB-I/2019/10/10 exhibited as Ex.DW3/A (OSR).
219. DW-3 also identified Ex.DW2/A which is the Aadhar Card updation form of her husband Naresh Sharma and deposed that on 16.08.2019 at around 01:00 PM she along with her husband Naresh Sharma was at Axis Bank, Nehru Place Delhi for updation CC No. 36/2020 CBI Vs Naresh Sharma Page No. 92 of 137 of Aadhar Card of accused. She further deposed that the document exhibited as Ex.DW2/A bears her signature at point C and they left the bank at around 02:00 PM after updation of Aadhar card. She further deposed that, thereafter, they came back to home and she prepared lunch and after having lunch together her husband left for his office at 03:15 pm. She further deposed that her house is about 2 to 3 kms away from Axis Bank Nehru Place.
220. During her cross examination, DW-3 has corroborated what she has stated in her examination-in-chief and no material contradiction has emerged.
ARGUMENTS BY PROSECUTION
221. During final arguments prosecution has stated that accused Dr. Naresh Sharma has been apprehended red handed on the spot and there is recovery of Rs.4 Lakhs from his car. There are recorded conversation amongst complainant and accused Dr.Naresh Sharma which reflects that accused Dr. Naresh Sharma was in touch with complainant and was compelling complainant and demanding illegal gratification, initially Rs. 5 Lakhs and later on after negotiation agreed to pay Rs.4 lakhs. Testimony of complainant is establishing all these facts. It is further argued that there are pre-trap verification in which the allegation made by the complainant have been found to be true and FIR has been registered.
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222. With regard to recorded conversation, Q-1 and Q-2 it is reflected from the transcript thereof which is not disputed being different and not the same as the conversation recorded, that accused Dr. Naresh Sharma has been demanding the gratification from the complainant and he had asked him to reach near Bal Bhawan. It is further stated that complainant went to FDA Bhawan on 14.08.2019 is not disputed. Presence of complainant at the spot along with all the trap team members including the members on 16.08.2019 is also not disputed by the accused. It is argued that why accused happened to be there in his red colour Wagon R and why complainant reached there and sat inside his car and how the recovery of Rs.4 Lakh tainted money has been effective from his car, has to be explained by accused himself for which he has not furnished any explanation.
223. It is further argued that accused has not disputed regarding use of mobile number and the handset made Apple which has been recovered at the spot from his possession. It has been specifically alleged that during pre-trap verification, accused Dr. Naresh Sharma had demanded Rs.5 Lakhs in code words i.e. A, B, C, D and E for which A signifies 1 Lakh, B signifies 2 Lakhs and so on and lastly E signifies 5 Lakhs. It is stated that there are two recorded conversation in between complainant and accused Dr. Naresh Sharma. Q-1 is the recorded conversation in between complainant and accused Dr. Naresh Sharma till 03:15pm on 16.08.2019 and Q-2 is the recorded conversation after trap team was constituted on 16.08.2019 itself till accused Naresh Sharma CC No. 36/2020 CBI Vs Naresh Sharma Page No. 94 of 137 was apprehended at around 08:00pm on 16.08.2019. In this conversation complainant and accused Dr. Naresh Sharma are talking freely as if they are acquainted with each other. There is no dispute with regard to mobile number and handset used by accused as well as complainant. The CDR of mobile numbers used by accused complainant and Sanjeev Goel as well as CAF in respect thereof has not been disputed. Screen-shots of whatsapp chat from the mobile of complainant which are Ex.PW3/F have not been disputed or controverted.
224. With regard to demand made by accused in code word, complainant PW-3 Trivender Kumar Rajput has stated that accused has demanded the money by stating in code word as A, B, C, D and E for which A = 1 Lakh, B = 2 Lakhs, C = 3 Lakhs, D = 4 Lakhs and E = 5 Lakhs. It is further stated that PW-19 Siddhart Sahay Malhotra has not supported the story of prosecution on the point of presence of accused at his office after lunch till 04:00 PM on 16.08.2019, however, he has not disputed the procedure which is to be adopted for grant of written confirmation and its renewal. This witness however, has stated that accused was his senior and boss who used to write his ACR, therefore, possibility of PW-19 under some influence of accused cannot be ruled out as PW-19 has stated, on the day of his examination in court that on that day he had come along with accused. It is further argued that one of the most essential witness from CDSCO from FDA Bhawan, K. Bangarurajan PW-20 has stated after hearing the recorded conversation in between complainant and accused that it seems to CC No. 36/2020 CBI Vs Naresh Sharma Page No. 95 of 137 be containing the voice of accused Dr. Naresh Sharma. Other facts besides identification of voice of accused Dr. Naresh Sharma has not been disputed by any of the witness called from FDA Bhawan.
225. Apprehension of accused from the spot that he has been caught red handed, recovery of Rs.4 lakhs from his dash board, the fact that Red colour Wagon R car driven by the accused himself have not been disputed except stating that recovery is planted. Therefore, minor contradictions, if any, in these circumstances are not so significant or grave so that the compelling testimonies of all the PWs can be disregarded.
226. With regard to demand and plea as per Section 7 of the Prevention of Corruption Act, ld. Sr. PP has relied upon one judgment in support of his contentions titled as 'Neeraj Dutta Vs. State', AIR 2023 Supreme Court 330, in which Hon'ble Supreme Court has held that :
"In order to prove guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence. The proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence. In order to prove demand and acceptance of illegal gratification by the public servant, it has to be borne in mind that :
if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per S. 7. In such CC No. 36/2020 CBI Vs Naresh Sharma Page No. 96 of 137 a case, there need not be a prior demand by the public servant.
If the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This constitutes offence under Section 13 (1)(d)(i) and (ii) In both cases, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence. The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not.
Of course, a presumption of act is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.
In the event the complaint turns 'hostile', or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence."
227. It is stated that prior to the judgment of Neeraj Dutta (Supra), the view taken by Hon'ble Supreme Court of India and other High Courts has been that demand should also be established.
228. In this regard, Ld. Sr. PP has also relied upon one judgment titled as P. Satyanarayan Murthy Vs. State of AP, 2015 10 SCC CC No. 36/2020 CBI Vs Naresh Sharma Page No. 97 of 137 152, in which it has been held by the Hon'ble Supreme Court that the proof of demand of illegal gratification is gravamen of the offence u/s 7 of the unamended Act, which related to the trap cases. It has been held that mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso-facto, would thus not be sufficient to bring home the charge under the said Section. Hence, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of amount from the person accused of the offence u/s 7 of the Act would not entail this conviction.
ARGUMENTS ON BEHALF OF ACCUSED
229. Accused, on the other hand, have stated that there is no record for evidence to show that he called complainant Trivender Singh Rajput on 13.02.2019. The concerned file of M/s Sterile India Pvt. Ltd. with regard to grant of written compensation was received by accused Dr. Naresh Sharma on 07.08.2019 and it was sent forward by him. Complainant did not meet with him on 14.08.2019 as alleged. It is further stated that he was not in his office after lunch on 16.08.2019 therefore the allegation that complainant had met him are without any basis. In this regard, he has examined two witnesses i.e., DW-2 Jyoti Shree and DW-3 Reena Sharma. DW-2 from Axis Bank has categorically stated that accused Dr. Naresh Sharma was present in their office at around 01:15 pm on 16.08.2019 for their Aadhar card updation and the entire process took about 15 to 20 minutes. DW-3, who is CC No. 36/2020 CBI Vs Naresh Sharma Page No. 98 of 137 wife of accused Dr.Naresh Sharma has stated that she was alongwith her husband in Axis Bank on 16.08.2019 for updation of aadhar card and thereafter they went to their house to have lunch and he left for his office at 03:15 pm. It is stated that due to this reason accused Dr.Naresh Sharma was not present in his office after lunch till around 04:00 pm on 16.08.2019. Therefore, the recorded conversation in between the complainant and accused of dated 16.08.2019 and the fact that he met accused accused Dr. Naresh Sharma on 16.08.2019 are false, fabricated and manipulated. It is stated that PW-19 Siddharth Sahay Malhotra has corroborated this fact.
230. It is argued that as a matter of record the drug license can be issued at the address so mentioned and in the present case it was at the address of Plot No. 100 Sector 56, Phase IV, Kundli, Sonipat and there was no license at Plot No. 118 G Sector 56, Phase IV, Kundli, Sonipat, Haryana. It is argued that as per rules the renewal of written confirmation could not be issued at the address at Plot No. 118 G, therefore, Sanjeev Goel and complainant Trivender Kumar Rajput due to ill will and grudge had made complaint against him when he has refused to grant written confirmation on the other address.
231. With regard to electronic evidence, it is argued that original device in which recording has been done has not been filed on record. Thus, certificate under Section 65 B Indian Evidence Act is required for electronic evidence, in these circumstances, Q-1 and CC No. 36/2020 CBI Vs Naresh Sharma Page No. 99 of 137 Q-2 are inadmissible in evidence. PW-5 Mahesh Jain has not stated that the document which has been filed on record is original.
232. In this regard, Ld. Counsel for accused has relied upon one judgment titled as 'Ram Singh & Ors vs Col. Ram Singh' decided on 7 August, 1985 (AIR 1986 SUPREME COURT 3), in which it has been held as : -
As regards the evidence recorded on a tape Recorder or other mechanical process the preponderance of authorities is in favour of the admissibility of the statements subject to certain safeguards viz., (1) the voice of the speaker must be identified by the maker of the record or by others who recognize his voice. Where the voice is denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker. [414 E] (2) The voice of the speaker should be audible and not distorted by other sounds or disturbances.
[414 E] 401 (3) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence.[414 F] (4) Every possibility of tampering with or erasure of a part of the tape recorded statement must be ruled out; [414 G] (5) The statement must be relevant according to the rules of evidence and [414 H] (6) The recorded cassette must be carefully sealed and kept in safe custody. [415 A] R. V. Maqsud Ali [1975] 2 All E.R. 464 and B. v.
Robson [1972] 2 All E.R. 699, referred to.
CC No. 36/2020 CBI Vs Naresh Sharma Page No. 100 of 137 In the instant case, the voices recorded at a number of places are not very clear and there is noise while the statements were being recorded by the Deputy Commissioner. A good part of the statement recorded on the cassette has been denied not only by the respondent but also the respondent's witnesses. No other witness has come forward to depose identification of the voice of the respondent or of witnesses. [444 E].
There are erasures here and there in the tape and besides the voices recorded being not very clear, it is hazardous to base a decision on such evidence. The Deputy Commissioner recorded the statements in violation of the instructions or the Government and erred in not placing the recorded cassette in proper custody. He kept it with himself without authority and therefore the possibility of tampering with the statements cannot be ruled out. The transcript was prepared in his office by his stenographer and when the transcript was being prepared the Deputy Commissioner himself was absent from his office. The possibility of its being tampered with by his stenographer or somebody else cannot be ruled out. Respondents witnesses have denied the identity of their voices. The recording was done in a haphazard and unsystematic manner.
A conspectus of the evidence of the witnesses shows that the evidence adduced by the respondent in the court is much superior in quality than that adduced by the appellants. The High Court was right in holding that the petitioners had failed to prove the allegations of corrupt practice or booth capturing beyond reasonable doubt. [441 E, 442 H-443 E]
233. It has been argued that recording was not directly recorded in memory card, therefore, it is not original, hence the procedure relating to establishing electronic evidence has not been complied with.. PW-3 complainant does not anything that DVR was given along with memory card. He merely signed the documents without perusing them. He has nowhere said that he took memory card with CC No. 36/2020 CBI Vs Naresh Sharma Page No. 101 of 137 him. Similarly, nothing in this regard has been reflected from the testimony of expert PW-15. The memory card which was sent to FSL was not containing the original voice. Thus, in these circumstances, the chances and possibility of tampering with audio recording cannot be ruled out.
234. Similar, observations have been made in case titled as 'Jahan Singh Vs. CBI', Criminal Appeal 106/2013 DOD 04.05.2020 passed by Hon'ble Justice Manoj Kumar Ohri. and 'Nilesh Dinkar Paradkar Vs. State of Maharashtra', AIR 2011 SC (CRIMINAL) 911.
235. It has been stated that the seal vide which Q-1 and Q-2 were sealed is stated to be handed over independent witness, however, in this regard the recovery memo Ex.PW3/D is not explaining the things properly. CBI has not explained in whose custody the memory card was kept. The case property is stated to have been seized on 16.08.2019 and then sent to photo division and then to other branch of CFSL. Copies of audio recording are stated to have been made. These audio recording have been sent to PW-5 on 10.11.2019. With regard to transcriptions, it is nowhere stated by any of the witness as to who has made the transcriptions.
236. One technical defect has been pointed out by the accused that CFSL, which is attached with CBI, has not been notified and is not qualified as per Section 79-A of the Information Technology Act. In this case, accused has relied upon one judgment titled as CC No. 36/2020 CBI Vs Naresh Sharma Page No. 102 of 137 'Anwar P. V. vs. P.K.Basheer', Civil Appeal No. 4226 of 2012 decided by Hon'ble Justice J. Kurian.
237. In this case, it has been held that only if electronic record has been duly produced in terms of Section 65-B of the Indian Evidence Act, the question would arise as to the genuineness thereof and in that situation resort can be made to Section 45-A.
238. It has been further held in the case of Anwar P. V (Supra) that : -
Proof of electronic record is a special provision introduced by IT Act amending various provisions under the Evidence Act. The very caption of Section 65 A read with Section 59 and 65-B is sufficient to hold that the special provisions on evidence relating to electronic record shall be governed by the procedure prescribed under Section 65-B of the Evidence Act.
239. Another judgment relied upon by the Ld. Counsel for the accused tittled as 'Jitender Pal Singh Vs. Krishan Kishor Bajaj' Crl. M No. 37435 of 2018 date of decision 29.10.2018 (Hon'ble High Court of Punjab and Haryana):
"Since, the electronic information record is comprised in digital codes formats therefore, by using appropriate softwares and hardwares, virtually any information can be created by arranging those digits in that particular manner, so as to create the digital information; containing therein a linguistic sentence or a sentence of conversation in audio form. Once an information is created, its mirror image can be used by a person claiming it to be the copy of the original. Still further, by passing the so created information through the appropriate filters of software, date or the filter of pitch and frequency, which again would be in a the digital form, voice of anybody can be re- created by the experts of the computer field. Hence, since the entire computer information is in the form of precise CC No. 36/2020 CBI Vs Naresh Sharma Page No. 103 of 137 digital form only, therefore, the same can be created as 'original' also with the same precision, even without the risk of possibility of the fabrication being easily detected. Its only the question of as to what is the level of expert who is creating the digital information. Hence, the digital information has to treated with due suspicion and more stringent test has to be applied to ti than the ordinary evidence, as has been held by Hon'ble Supreme Court in its judgment rendered in 2010 (1) RCR (Civil) 959 Tukaram S. Dihole Vs. Manikaro Shivaji Kokate. Hence, the authenticity of the recording of the information is as important as the content of the information itself, lest the court should be taken fro a ride by unscrupulous experts in the field of the fabrication of the information. Accordingly, the above mentioned Section 65 B of the Indian Evidence Act has laid down a strict test to ascertain the authenticity of the creation or the recording of the information."
240. It has been further argued that the memory card which is stated to have been sealed whether it is same or not in which audio is stated to have been recorded and whether the same has been placed on record has not been stated by any prosecution witness. It is therefore, stated that accused has been falsely implicated in this case.
241. Ld. counsel for accused has also relied upon the judgment, 'Ajay Gupta Vs. CBI', Crl. Appeal 469/2003, date of decision 28.10.2022, passed by Hon'ble Ms. Justice Anu Malhotra, wherein it is held that :
Furthermore, the FSL result dated 31.09.1997 only states that the questioned voice samples marked Q-1, Q-2 which were then matched with S1, the voice samples of the appellant were 'probably' of the same speaker. Apparently, the accused cannot be held guilty on the basis of probabilities in a criminal trial. In the circumstances, of the case, the appellant is thus acquitted in relation to the allegations in RC No. 80(A)/96/CBI/ACB/New Delhi qua the alleged commission of offences punishable under CC No. 36/2020 CBI Vs Naresh Sharma Page No. 104 of 137 Section 7 and Section 13 (1) (d) read with Section 13 (2) of the Prevention of Corruption Act, 1988.
242. In this regard, it has been further argued that a person who is not acquainted with voice of accused is not relevant. PW-3 is an interested witness who was trying to get work done through accused which was not permissible as per procedure and when it was refused, therefore, out of grudge Sanveep Goel and PW-3 have lodged a false complaint. It is stated that original complaint has not been filed on record. As per averment on 13.08.2019, accused had called Sanjeev Goel whereas charge-sheet says that Sanjeev Goel called accused. When accused has already sent the file on 07.08.2019 then he had no reason to call Sanjeev Goel or complainant. Accused Naresh Sharma, however, has not disputed that Trivender Kumar Rajput had called him on 14.08.2019.
243. With regard to grant of sanction, it is stated that PW-1 has not applied his mind while granting sanction in the present case.
Accused has joined as Drug Inspector through UPSC, therefore, the appointing authority is President of India. The sanctioning authority should also be President of India.
244. In this regard, accused has relied upon judgment of 'State Inspector of Police vs. Surya Sankaram Karri', RCR Crl. 1335 of 2004 SC (Date of Judgment 24.08.2006), in this case it has been held that Ld. Trial court has committed serious error as it has failed to take into consideration at PW-37 being a Senior Divisional Operations Manager was not competent to accord sanction for CC No. 36/2020 CBI Vs Naresh Sharma Page No. 105 of 137 prosecution of respondent. He had accepted in his evidence that under the rules he was not competent authority to remove him from service, however, he has stated that he has been delegated with the power of removing the Chief Commercial Inspector of the headquarter of South Eastern Railway. Thus, it has been held that the Ld. Special judge did not apply his mind to these aspects of the matter at all.
245. With regard to demand, it is stated that none of witness except PW-3 has stated that accused was present in his office before lunch on 16.08.2019. thus, the theory propounded by accused that complainant Trivender Kumar Rajput met with accused Dr. Naresh Sharma should be discarded. PW-3 himself has stated that when he visited the office of accused Dr. Naresh Sharma on 16.08.2019, before lunch he did not find him there. It is stated by accused that PW-3 and PW-12 have connived with each other and they are planted witness. There should be demand at the spot, as well. In this regard, counsel has relied upon one judgment of 'A.Shanthamma vs. State of Telangana', Crl. Appeal No. 261 of 2022 arising out of SLP Crl. No. 7182 of 2019.
246. Ld. Counsel for the accused has also relied upon the judgment of Surajmal Vs. State, AIR 1979 SC 202 which is on the point of credit worthiness of the witness. It is stated that all the documents were signed by PW-3, without seeing them. There is material contradiction in the testimony of PW-9 and PW-17. Accused was having no motive to demand money on 16.08.2019 CC No. 36/2020 CBI Vs Naresh Sharma Page No. 106 of 137 as the file was not with him. It has been further argued that wash of parking sticker has been taken but there is no dashboard wash taken by CBI. Thus, the 'Wash' has been planted upon the accused. It is further stated that during recording of testimony when the case property i.e., bottles containing the wash were produced in the court they were found containing one cloth, however, this fact has not been mentioned by the IO in his report nor it has been stated by any of the witness.
247. It is however, important to mention that at the time of examination of this witness when the case property was produced before the court and seal was opened it was found that seal remained intact and no contradiction in this regard has been raised from the side of accused. It is also reflected that there is one piece of cloth kept in the bottle in which wash has been kept after trap proceedings and thereafter sealed as well, has not been mentioned in the said memo. This not mentioning of piece of cloth in the concerned memo, in my considered opinion is not so grave that it could raise doubt and query over the entire process taken place at the spot for which prosecution witnesses have deposed and corroborated.
248. With regard to registration of FIR, it is stated that it is against CBI manual. All the facts should be recorded in the FIR, which is not there in the present case. Suspicion, howsoever, grave it may be is not sufficient to prove the guilt of accused.
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249. Besides, the above mentioned citations, Ld. counsel for accused has also relied upon the following citations in support his contention.
i. Anand Ramchandra Chougle Vs. Sidarai Laxman Chougala with State of Karnataka Vs. Sidarai Laxman Chugala & Ors, SCC 1006 of 2010.
ii. Gurucharan singh Vs. State, 1993 CRL J 1622 DHC.
iii. Gulam Hasan Deigh Vs. Mohammad Maqbool Magrey (SLP (Criminal)) No. 4599/2021.
iv. State Inspector of Police Vs. Surya Sankaram Karri RCR (Criminal) 1335 of 2004 SC.
v. State of Karnataka Vs. Ameerjan 766 of 2001.
vi. Anvar P. V. Vs. P. K. Bhaseer & Ors. 4226 of 2012 vii. Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and Ors, Civil Appeal 20825-20826 of 2017.
viii. Ram Singh & Ors. Vs. Col. Ram Singh AIR 1986 SC 3.
ix. S. K. Saini & Anr. Vs. CBI Cril. A 159/2005 x. Jahan Singh Vs. CBI, Crl. A. 106/2013 xi. Nilesh Dinkar Paradkar Vs. State of Maharashtra, 2009 (4) SCC 537 xii. Jatinder Pal Singh Vs. Krishan Kishore Bajaj CRM M 37435 of 2018.
xiii. Tukaram S. Dighole Vs. Manikrao Shivaji Kokate, Civil appeal 2928 of 2008.
CC No. 36/2020 CBI Vs Naresh Sharma Page No. 108 of 137 xiv. State vs Daulat Ram, 1980 RCR (Cr.)303 SC.
xv. State vs. Hasraj 997 of 2009 LRC Delhi.
xvi. Ajay Gupta Vs. CBI Crl. A 469/2003 xvii. Dola @ Dolagobina Pradhan & Anr. Vs. The state of Orissa, Crl. 1095/2018 xviii. S. K. Singhal Vs. CBI, Crl 577 (2002) DHC xix. Inspector of police T.N. Vs. Palanisamy @ Selvan, Cri. Appeal No. 177 of 2003.
xx.K. Santhamma Vs. The State of Telangana, Crl. 2016/2002 SCC xxi. Suraj Mal Vs. The State (Delhi) AIR 1979 SC Crl. 202 xxii. Ashok Narang Vs. State, Crl. 932/2009 xxiii. Meena Balwant Hemke Vs. State of Maharashtra, SCC 2000.
xxiv. M. K. Harshan Vs. State of Kerela, Crl. 121/1989 xxv. T. Subramanian Vs. State of TN Crl. 186 (2000) SCC xxvi. Chander Bhan Vs. State (CBI) Crl. 309/1977 xxvii. Ganpathi Sanya Naik Vs. State of Karnataka Crl. 1218/2007 SCC xxviii. Anil Sharma Vs. State of Jharkhand, Crl. 622- 624/2003 SCC xxix. State of Haryana Vs. Ram Singh, Crl 78/1999.
xxx. Kishan Chand Verma Vs. State through CBI in Crl. A. 788/2000 DHC CC No. 36/2020 CBI Vs Naresh Sharma Page No. 109 of 137 xxxi. Lachman Dass Vs. State of Punjab AIR 1970 SC 450 xxxii. Panna Lal Damodar Rathi Vs. State of Maharashtra, 1979 4 SCC 526 xxxiii. Khushi Ram Vs. State 7 (Supra) 1995 II AD Delhi 77 xxxiv. Rohsan Lal Saini Vs. CBI (DHC) 2011 [1] JCC 102 xxxv. V. D. Jhangan Vs. State of Uttar Pradesh AIR 1966 SC 1762 xxxvi. State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede 2009 (4) RCR (Crl.) SC 1350 xxxvii. Prem Singh Yadav Vs. CBI 2022 (2) JCC 1059 xxxviii. Babuda Vs. State of Rajasthan, AIR 1992 SC 2091 xxxix. Swinder Singh VS. State of Punjab, AIR 1992 SC 2093 xl. Varkey Joseph Vs. State of Kerala, 1993 Cr. L. J 2010 (SC)
250. Arguments heard at length. I have gone through the rival submissions of the parties. I have also perused the material placed on record filed along with the charge-sheet as well as testimonies of prosecution witnesses and sole testimony of defence witness. The entire material placed on record along with the testimonies of witness is perused and following are the reasons to determine the liability of accused Dr. Naresh Sharma. It is needless to say that in a criminal case, the primary and foremost burden to prove the liability of accused is on the prosecution and this burden should be CC No. 36/2020 CBI Vs Naresh Sharma Page No. 110 of 137 discharged by the prosecution in order to establish his/her liability beyond reasonable doubt.
251. In this regard reference can be laid upon one landmark judgment of "Sodhi Transport Vs. State of UP", AIR 1986 SC 1099, in which it has been held that, it is a rule concerning evidence, it indicate the person on whom lies the burden of prove, when the presumption is conclusive, it obviates the need of production of any other evidence to dislodge the conclusion to be drawn on proof of certain facts. When it is rebuttable, it points out the party on whom lies the duty of going forward with evidence.
252. Now, coming to the various aspects which are required to be considered and analyzed in the light of evidence by the prosecution, they are perused and analyzed in the following paras after considering the rival contentions of the parties i.e., prosecution and the accused.
PLEA OF SANCTION
253. In this regard, it is stated on behalf of accused that sanctioning authority has not applied its mind and the order of grant of sanction has not been passed under the signature of the authority who is competent to remove the accused i.e. President of India. In this regard, the sole testimony of PW-1 and the relevant documents are perused. PW-1 Anil Ranga is the concerned person CC No. 36/2020 CBI Vs Naresh Sharma Page No. 111 of 137 under whose signature the sanction for prosecution dated 02.03.2020 which is exhibited as Ex.PW1/C has been placed on record. PW-1 has stated that he (PW-1) was Director (Vigilance), Ministry of Health and Family Welfare, Government of India. This fact corroborates from the document Ex.PW1/C which is bearing signature of PW-1 at point A, which is at its internal page No. 4. This document Ex.PW1/C is perused thoroughly. All the allegations, relevant materials, and testimonies of witnesses are stated to have been discussed vide this sanction order. It is further reflected that this order has been passed under delegated power and by the order and in the name of The President. All these facts have been incorporated in the testimony of PW-1. During his cross examination, it is stated by PW-1 that he had not checked the file for the documents, however, it has been examined in the vigilance department by Under Secretary Vigilance.
254. PW-1 has categorically stated in his cross examination that The President of India is the competent authority to remove the accused Dr. Naresh Sharma from his office and President has delegated his power to Minister Incharge, Ministry of Health and Family Welfare under business allocation rules. It is further stated that all the powers including removal from the office and according of sanction for prosecution under Section 19 P. C Act have been delegated by the President to the Minister Incharge Ministry of Health and Family Welfare under business allocation rules. The suggestion that Minister Incharge did not apply his mind and did not peruse the file before grant of sanction of prosecution has been CC No. 36/2020 CBI Vs Naresh Sharma Page No. 112 of 137 denied.
255. It is reflected from the testimony of PW-1 and after perusing the document Ex.PW1/C i.e. the sanction order dated 02.03.2020 that it is not suffering from any irregularities or discrepancies. No question regarding entire document or material not placed before the concerned authority who has to grant sanction, has been put to the witness. In this regard, prosecution has relied upon certain judgment in support of their contention one of the judgment is 'State Vs. K. Narasimhachary', 2006 CRI.L.J.518 wherein it is held that:
'In the instant case, the order of sanction for prosecution of public servant was issued under S. 19 of Prevention of Corruption Act (1988). The Secretary to State Government merely authenticated the said order of sanction, which was issued in the name of the Governor of State. The order of sanction was, thus, issued by the State in discharge of its statutory functions in terms of S.19 of the Act. The order of sanction was authenticated. The said order of sanction was an executive action of a state having been issued in the name of the Governor. It was authenticated in the manner specified in the Rules of Executive Business. The authenticity of the said order has not been question. It was, therefore, a public document within the meaning of S. 74 of the Evidence Act. A public document can be proved in terms of Ss. 76 to 78 of the Evidence Act. A public document can be proved otherwise also. The high Court, therefore, was not correct in invoking the provisions of S47 of the Evidence Act in the instant case, a sit was not called upon to form an opinion as to by whom the said order of sanction was written and signed. (Paras 11, 14, 16)
256. In this regard, prosecution has relied upon another judgment titled as 'CBI Vs. Ashok Aggarwal', MANU SC 1220 (2013), in which it has been held that:
CC No. 36/2020 CBI Vs Naresh Sharma Page No. 113 of 137 "The legal propositions can be summarized as under:
(a) The prosecution must send the entire relevant record to the sanctioning authority including the FIR, disclosure statements, statements of witnesses, recovery memos, draft charge sheet and all other relevant material. The record so sent should also contain the material/document, if any, which may tilt the balance in favour of the accused and on the basis of which, the competent authority may refuse sanction.
(b) The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently applying its mind and taking into consideration all the relevant facts before grant of sanction while discharging its duty to give or withhold the sanction.
(c) The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought.
(d) The order of sanction should make it evident that the authority had been aware of all relevant facts/materials and had applied its mind to all the relevant material.
(e) In every individual case, the prosecution has to establish and satisfy the court by leading evidence that the entire relevant facts had been placed before the sanctioning authority and the authority had applied its mind on the same and that the sanction had been granted in accordance with law.
It has been further held that:
The Prevention of Corruption Act, 1988 - Section -19 - - Sanction for prosecution- grant of sanction- Is not mere formality - provisions in regard to sanction must be observed with complete strictness-- keeping in mind public interest and protection available to accused against whom sanction is sought - Grant of sanction is not acrimonious exercise but solemn and sacrosanct act which affords protection to Government servant against frivolous prosecution.
The prosecution has to satisfy the court that at the time of sending the matter for grant of sanction by the competent authority, adequate material for such grant was made available to the said authority. This may also be evident from the sanction order, in case it is extremely CC No. 36/2020 CBI Vs Naresh Sharma Page No. 114 of 137 comprehensive, as all the facts and circumstances of the case may be spelt out in the sanction order. However, in every individual case, the court has to find out whether there has been an application of mind on the part of the sanctioning authority concerned on the material placed before it. It is so necessary for the reason that there is an obligation on the sanctioning authority to discharge its duty to give or withhold sanction only after having full knowledge of the material facts of the case. Grant of sanction is not a mere formality. Therefore, the provisions in regard to the sanction must be observed with complete strictness keeping in mind the public interest and the protection available to the accused against whom the sanction is sought. It is to be kept in mind that sanction lifts the bar for prosecution. Therefore, it is not an acrimonious exercise but a solemn and sacrosanct act which affords protection to the government servant against frivolous prosecution. Further, it is a weapon to discourage vexatious prosecution and is a safeguard for the innocent, though not a shield for the guilty. Consideration of the material implies application of mind. Therefore, the order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. In every individual case, the prosecution has to establish and satisfy the court by leading evidence that those facts were placed before the sanctioning authority and the authority had applied its mind on the same. If the sanction order on its face indicates that all relevant material i.e. FIR, disclosure statements, recovery memos, draft charge sheet and other materials on record were placed before the sanctioning authority and if it is further discernible from the recital of the sanction order that the sanctioning authority perused all the material, an inference may be drawn that the sanction had been granted in accordance with law. This becomes necessary in case the court is to examine the validity of the order of sanction inter-alia on the ground that the order suffers from the vice of total non- application of mind."
257. From the above discussion and keeping in mind the mandate laid down in above cited judgments, it is reflected that testimony of PW-1 under whose signature the order has been communicated is CC No. 36/2020 CBI Vs Naresh Sharma Page No. 115 of 137 not suffering from any irregularities or procedural defect. In my considered opinion, communication of order can be made by an authority under delegation of powers and if there is proper delegation of power as per procedure then such communication cannot be considered as of no effect. Sanction order Ex.PW1/C explains all the necessary things including the fact that all the circumstances for grant of sanction for prosecution has been considered by the concerned authority. Thus, in my considered opinion, submissions made on behalf of accused that sanction order is not proper, is not tenable in the eyes of law.
258. There is no dispute to the fact that accused is a public/government servant and is governed by Prevention of Corruption Act. It is also not disputed that removal of written confirmation was being considered and looked after by accused Naresh Sharma. One of the defence taken by accused is that he did not met with the complainant on 14.08.2019 and on 16.08.2019 as well, during office hours. In this regard, one of the most important document is the complaint lodged by complainant Trivender Kumar Rajput examined as PW-3 and Sanjeev Goel owner of M/s Sterile India Pvt. Ltd., who is examined as PW-12 as well as their testimonies.
259. The prosecution story starts from the day 13.08.2019, on which the complaint was not lodged but it is alleged by the complainant and Sanjeev Goel that accused Dr. Naresh Sharma had CC No. 36/2020 CBI Vs Naresh Sharma Page No. 116 of 137 asked them to meet him. The demand of Rs.5 lakhs is stated to have been made on 14.08.2019. As per record, complaint dated 16.08.2019 exhibited as Ex.PW3/A stated to have been made to CBI thereafter. It contain all the allegations and demand of Rs.5 Lakh by accused Dr. Naresh Sharma. All these facts are stated by PW-12 and PW-3 during their examination.
260. With regard to pre-trap verification, the charge-sheet says that after receiving the complaint, its contents were verified and PW-3 was asked to go to FDA Bhawan. PW-3 has categorically stated that when he went to FDA Bhawan along with CBI officials he was given recording device and was asked to record the conversation with the accused. Another person namely Shubhanker Chatterjee, PW- 9 was also accompanying PW-3. As per allegation in the charge-sheet , PW-9 waited outside of the office of accused Dr. Naresh Sharma and PW-3 has stated that he met with accused Dr. Naresh Sharma after lunch. All the conversation in between PW-3 and accused Dr. Naresh Sharma have been recorded which is Q-1 for dated 16.08.2019. The transcription for Q-1 and Q-2 is Ex.PW3/E (colly) (D-16). There is report of expert as well for which PW-5 Mahesh Kumar Jain and PW-15 P. K. Gottam have been examined.
261. It is a matter of record that at the time when these recorded conversation i.e. Q-1 and Q-2 were played in the court, PW-3 has identified his voice as well as the voice of accused Dr. Naresh CC No. 36/2020 CBI Vs Naresh Sharma Page No. 117 of 137 Sharma from the recorded conversation along with its transcription. It is reflected that accused Dr. Naresh Sharma has been talking freely with complainant as if he knew him and he has been negotiation and pursuing complainant, to pay the bribe amount. These recorded conversation were also played before PW-20 Bangarurajan who, after hearing the same, being pointing out at specific places, where as per transcription the voice of accused Dr.Naresh Sharma is stated to be, has said that it seems to be voice of accused Dr. Naresh Sharma. Opinion of expert from CFSL in this regard, as per record exhibit Ex.PW5/B is the voice in the recorded conversation in Q-1 and Q-2 is that of Trivender Kumar Rajput (PW-3) and accused Dr. Naresh Sharma. In my considered opinion, it amounts to corroboration.
262. This fact is further strengthen from the fact, after perusing the testimony of PW-20 K. Bangarurajan as when he was asked specifically to read the transcript and was asked to hear the words without identifying the voice and to narrate whether it was according to the transcription before him or not for which he has stated in affirmative that the recorded conversation which he has heard in the court at the time of his examination, is containing the same words and sentences as reflected in the transcription of Q-1 and Q-2. Therefore, all these facts reflect and corroborate atleast one fact that there are no discrepancies in the transcription of the recorded audio conversation. In my considered opinion, PW-3 is the most relevant and important person who had met and conversed with accused Dr.Naresh Sharma. This fact has been corroborated by CC No. 36/2020 CBI Vs Naresh Sharma Page No. 118 of 137 other persons i.e., CBI officials and other independent witnesses PW-9 Shubhankar Chatterjee and PW- 17 Ashish Kumar. They have stated in their testimony that they have heard the recorded conversation by themselves immediately after it was recorded, and when the recording device was taken back by CBI officials and after hearing it was switched off again.
263. In this regard, accused has relied upon one judgment Ajay Gupta Vs CBI (Supra) in which it has been held that:
'the voice samples of the appellant were 'probably' of the same speaker. Apparently, the accused cannot be held guilty on the basis of probabilities in a criminal trial.'
264. Facts and circumstances of Ajay Gupta (Supra) are perused. In this case, besides the above mentioned fact of voice being probably of the speaker, accused was also not identified and there were other starking facts which were not establishing the liability of the accused. In the present case, however, one single fact cannot be taken out and be read in isolation in consonance with Ajay Gupta (Supra) that identification of voice on probable ground amounts to accused not guilty. The entire facts and circumstances has to be seen and considered. In this regard, Ld. Special PP for CBI has relied upon certain citations which are as follows: -
265. "State of UP vs. Krishna Master & Ors." AIR 2010 SC CC No. 36/2020 CBI Vs Naresh Sharma Page No. 119 of 137
307. In this case, it has been held that minor omissions in the police statements are never considered to be fatal. The statement given by the witnesses before the police are meant to be brief statements and could not take place of evidence in the court. It is the duty of the court to separate falsehood from the truth.
266. "State of Rajasthan Vs. Smt. Kalki" AIR 1981 SC 1390.
In this case, it has been held that in the deposition of the witnesses, there are always some normal discrepancies, however, honour and truthful they may be. These discrepancies are normal errors of observation, normal errors of memory due to lapse of time, due to mental deposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal and not expected of a normal person.
267. "State of Karnataka Vs. Suvarnnamma" 2015 (1) AKR 2013. In this case, similar observations as made in case "Smt. Kalki" (supra), have been made in this case as well and it has been held as under:-
One of the objection taken by the counsel for accused is that neither the postmortem was conducted properly nor the collection of evidence by Ghaziabad police is proper nor all the witnesses who are mentioned in the punchnama of the dead body are examined, nor other important witnesses who were instrumental in the investigation qua the dead body found at Ghaziabad, have been examined. It is further argued that above all, there are various discrepancies which are grave in CC No. 36/2020 CBI Vs Naresh Sharma Page No. 120 of 137 nature.
268. Keeping in mind the above judgments so relied upon it is important to mention here that facts and circumstances of a case which are peculiar in nature and distinct from other, are to be seen and analyzed with its background and evidence so led. Any judgment relied upon in support of their contention by either side, therefore, cannot be read in isolation, mechanically and objectively but should be applied subjectively. In the present case, other witnesses have identified the voices of complainant and accused Dr. Naresh Sharma. PW-20 K. Bangarurajan has not stated that the voice in Q-1 and Q-2 is not that of accused Dr. Naresh Sharma. Thus, his stating of the fact that the voice seems to be that of accused Dr. Naresh Sharma is not denying the fact but indicating the probability that this can be the voice of accused Dr. Naresh Sharma. This fact, therefore, has to be corroborated from the other evidence available on record for which, in my considered opinion, PW-3, PW-5, PW-9, PW-15 and PW-17 have supported the story of prosecution.
269. It is reflected from the submissions made on behalf of the accused that exhibits were sent to CFSL on 11.10.2019 but were examined by PW-5 from 26.02.2021. PW-5 has explained this fact during his cross examination, that the exhibits were received by him in February, 2021 from the testimony of PW-5 and other witnesses and as well as the testimony of PW-18 Raj Saurav and PW-21 Inspector H. V. Attri as well as PW-15 P. K. Gottam, CFSL.
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270. It is reflected that accused has not been able to point out any contradiction regarding seals of the exhibits being tampered or manipulated or not intact till they were received by PW-5 in February, 2021 as per record. In these circumstance, in my considered opinion, there seems to be some delay however, facts and circumstances during that period which are sine qua non cannot be ignored. It is the known fact that at the end of 2019 there was widespread pandemic of CORONA Virus and situation from November, 2019 and December, 2019 became worst to worst not only in the world but in India, as well. Since, last week of March, 2020 there was complete lock-down in entire India which continued till beginning of February, 2022. The situation during this period was such that every person be it public servant or private person was striving for his survival and existence. Thus, such situation which was prevalent at that time in which working condition were not very conducive to do any work, cannot be ignored. These are such circumstances for which judicial notice can be taken. Hence, the delay in examining the exhibits by PW-5 cannot be considered as inordinate delay, in my considered opinion, keeping in mind the totality of circumstances, as mentioned above. Therefore, the submissions made on behalf accused to this extent, are not tenable in the eyes of law.
271. Once, this fact that voice in the recorded conversation supported with its true transcription available on record is that of accused Dr. Naresh Sharma, against which accused has not been able to shift the onus upon the prosecution by pointing out any CC No. 36/2020 CBI Vs Naresh Sharma Page No. 122 of 137 contradiction in respect thereof, then presence of accused during all the relevant time at the spot along with complainant, cannot be said to be disputed. In this regard, observation with regard to minor discrepancies as laid down in the judgments titled as Suvarnnamma (Supra), Kalki (Supra), and Krishna Master (Supra) are equally applicable in the present circumstances and the judgment titled as Ajay Gupta Vs. CBI, (Supra) cannot be said to be of any help to the accused, keeping in mind the peculiar facts and circumstances of the present case. One of the arguments of accused in this regard , has been that accused was not present in his office after lunch till around 04:00 PM on 16.08.2019 for which he has examined DW-1, DW-2 and DW-3 in support of his contention. Identification of voice of accused Dr.Naresh Sharma in Q-1 and Q-2 one of which is pertaining to the post lunch session on 16.08.2019, however, have been corroborated that it is containing his voice. Thus, prosecution, in my considered opinion has been able to shift the onus upon accused. Now, it is upon the accused Dr. Naresh Sharma to shift the onus again upon the prosecution and discharge the burden of proving the special circumstances as alleged by him.
272. In this regard, prosecution has argued that Section 106 Indian Evidence Act, 1872 lays down the law pertaining to burden of proof of special fact alleged by a person, which is always upon the person who alleges so.
Section 106 of Indian Evidence Act reads as under:-
"Burden of proving fact especially within CC No. 36/2020 CBI Vs Naresh Sharma Page No. 123 of 137 knowledge.-- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
273. In this regard reference can be laid upon two judgments titled as "Raju Vs. State", MANU DE 4009 2013 and "State of UP Vs. Lakhmi", MANU SC 126 1998, in which it has been held after relying upon the judgment titled as "Sodhi Transport Vs. State of UP", AIR 1986 SC 1099, that it is a rule concerning evidence, which indicate the person on whom lies the burden of prove, when the presumption is conclusive, it obviates the need of production of any other evidence to dislodge the conclusion to be drawn on proof of certain facts. When it is rebuttable, it points out the party on whom lies the duty of going forward with evidence.
274. DW-2 Jyoti Shree, has been examined by accused in support of his contention that on 16.08.2019, he went for updation of his Aadhar card along with his wife. After careful examination of the testimony of this witness, it is reflected that though they have placed on record the proof of their presence at Axis Bank pertaining to updation of their aadhar Card, however, they were free after updation at around 01:45pm. There is an alibi of accused for which DW-3 has been examined who has said that accused along with his wife Reena Sharma, DW-3 went to his house and had lunch there and left after 3:15pm. PW-11 has stated that during lunch hours on 16.08.2019, accused Naresh Sharma had gone outside of his office and he was not in his room till 03:00 PM.
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275. PW-11 has stated that he met him on 16.08.2019 at around 04:00 PM. Complainant PW-3 and PW-9 Shubhankar Chatterjee have categorically stated that they had gone to office Naresh Sharma on 16.08.2019 after lunch and they also got issued one gate pass exhibited as Ex.PW3/DD-2. This document that is gate pass Ex.PW3/DD-2 is perused it is filed in original and it is stated to be issued on 16.08.2019. This gate pass is issued in the name of Trivender Kumar Rajput, who is complainant in the present case from Sterile India having mobile no. 9599071077 and it is issued to meet with the officer Sh. Naresh Sharma, who is accused in the present case.
276. Thus, on the one hand there are testimony and documentary evidence of PW-3 along with PW-9, went to meet accused Dr.Naresh Sharma at his office FDA Bhawan on 16.08.2019 for which he got issued gate pass exhibited as Ex.PW3/DD-2 and also met him for which recorded audio conversation Q-1 and Q-2 establishing his presence on the spot, and the fact that he met with accused Dr. Naresh Sharma are also placed on record. All these testimonies of PW-3 are supported with documentary evidence. Ex.PW3/DD-2 and Q-1 and Q-2 for which there is corroborative evidence of the report of PW-5 and PW-15 from CFSL.
277. On the other hand, there is oral testimony of DW-3 that after getting the updation of aadhar card process of which concluded till 01:40pm/01:45pm on 16.08.2019. Accused Dr. Naresh Sharma CC No. 36/2020 CBI Vs Naresh Sharma Page No. 125 of 137 along with his wife went to his house for having lunch and remained there till 03:15pm. It is needless to say that documentary evidence is a primary evidence which is always on a better footing than oral evidence. In case, there are documentary evidence and oral evidence contrary to each other for a particular fact, then it is a documentary evidence which has always been given weightage. Unless and until such documentary evidence is proved being manipulated or fabricated. No such fact has been reflected from the examination of PW-3, PW-5, PW9, PW-15 and other CBI officials that all the above mentioned documentary evidence are false, forged, fabricated and manipulated. Thus, in my considered opinion accused has not been able to discharge the burden of proving special circumstances that he was not present in his office till 04:00pm or the recorded audio conversation which is stated to be pertaining to post lunch session on 16.08.2019 is fabricated and manipulated piece of document. Timing of recording
278. Another defence taken by accused Dr. Naresh Sharma is that prosecution has failed to establish one of the special ingredient of Section 7 of Prevention of Corruption Act i.e., demand. Prosecution has also not established that recovery of alleged money from the accused in person. The bribe money has been planted upon the accused. In this regard, a lot has been discussed in above mentioned paras while dealing with ingredients of Section 7 of Prevention of Corruption Act supported with relevant judgments P.Sirajuddin (Supra) and Neeraj Dutta (Supra) wherein it has been held that acceptance of bribe amount in itself explain the CC No. 36/2020 CBI Vs Naresh Sharma Page No. 126 of 137 circumstantial evidence, if there are other supportive evidence like recorded conversation etc. available on record. In the present case, there has been recovery of Rs.4 lakhs from the dashboard of red colour WagonR car of accused Dr. Naresh Sharma bearing registration no. DL7CH 4789 at the spot itself and accused has been caught red handed from the spot itself. He was found sitting with complainant in his car. The number of currencies which were noted down by the CBI team also matched with the currency recovered from the car of the accused. Wash of the parking sticker on which bribe money was placed, was also taken on the spot which was found positively containing phenolphthalein powder when treated with the solution of sodium carbonate. Report of PW-5 corroborates this fact.
279. There are recorded conversation of accused Dr. Naresh Sharma with complainant Trivender Kumar Rajput Q-1 and Q-2 in which accused has not been able to point out any scope of fabrication or manipulation. It has come on record, during trial, that the seal on the exhibits and case properties remain intact. All the circumstances, therefore, in my considered opinion, indicate that accused Dr. Naresh Sharma had demanded Rs.5 Lakh from complainant PW-3 and Sanjeev Goel PW-12. There is one call made in between Sanjeev Goel and accused Dr. Naresh Sharma as shown in CDR at 01:17:12pm on 13.08.2019 for 76 seconds. PW- 12 Sanjeev Goel has also stated that during this conversation on phone accused Dr. Naresh Sharma asked him to meet regarding written confirmation. PW-12 has stated that he authorised PW-3 CC No. 36/2020 CBI Vs Naresh Sharma Page No. 127 of 137 to meet accused Dr. Naresh Sharma rest of the story which is not repeated here for brevity is narrated by PW-3 that upon authorization by his owner Sanjeev Goel he met with accused Dr. Naresh Sharma on 14.08.2019 when accused Dr. Naresh Sharma demanded Rs.5 Lakhs which was negotiated and he agreed to take Rs.4 Lakhs as bribe for granting written confirmation. All these facts, have been discussed in above mentioned paras. Thus, in my considered opinion all these facts and circumstances are indicating that there was a demand raised by accused Dr. Naresh Sharma for grant of written confirmation to M/s Sterile India Pvt. Ltd. Recovery of Rs. 4 Lakhs from the dashboard of the car of accused further corroborates this fact. Accused Dr. Naresh Sharma in my considered opinion has failed to establish anything contrary to these facts. Thus, element of demand by circumstantial evidence and element of acceptance by recovery and apprehension of accused at the spot itself, in my considered opinion has been established by the prosecution.
280. With regard to whatsapp conversation and chat and their printouts which have been placed on record by PW-3, it is reflected that accused Dr. Naresh Sharma has not disputed the fact that the number which is reflected on the print out of whatsapp chat is not that of accused Dr. Naresh Sharma. These print outs and whatsapp chat are nothing but corroborative piece of evidence that complainant was chatting with and making calls to accused Dr.Naresh Sharma on 14.08.2019 and 16.08.2019.
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281. One of the defence taken by accused Dr. Naresh Sharma is that it was the mobile phone of the complainant which was the original document and recording have not been made directly in DVR. It has been further stated that there are discrepancies in the testimonies of PW-2 as to whether micro SD card was inserted in the DVR or not is not established from verification memo and post verification memo. It is further alleged that copies have been made of the alleged audio recording which have been sent and analyzed by PW-5 and PW-15, therefore, certificate under Section 65 B of the Indian Evidence Act is required.
282. In this regard, it is important to mention here that original DVR and micro SD card being case property and being used in the present case was produced during trial before the court. In my considered opinion, when original document containing the recorded conversation is produced in the court, then as per Section 65 A and 65 B of Indian Evidence Act no certificate is required to be filed in support there with. Such production of original document is as per Section 62 of Evidence Act which is primary evidence itself. It has been held in Anwar P. V. (Supra) that, 'if an electronic record is as such used as primary evidence under Section 62 of Evidence Act, the same is admissible in evidence, without compliance of the condition in Section 65 B of the Evidence Act.'
283. Reference can be laid upon certain landmark judgment of "Sonu Vs. State of Haryana" Manu SC 835 (2017). In this case, CC No. 36/2020 CBI Vs Naresh Sharma Page No. 129 of 137 Hon'ble Supreme Court of India while dealing with the law pertaining to Section 65 B of Indian Evidence Act, has held that :-
"the interpretation of Section 65-B (4) by this court by a judgment dated 04.08.2005 in "Navjot Sandhu" (supra) held the field till it was overruled on 18.09.2014 in "Anvar P.V's" case (supra). All the criminal courts in this country are bound to follow the law as interpreted by this court. Because the interpretation of Section 65 B in Navjot Sandhu, there was no necessity of a certificate of proving electronic records. A large number of trials have been held during the period between 04.08.2005 and 08.09.2014. Electronic record without a certificate might have been adduced in evidence. There is no doubt that the judgment of this court in Anvar's case has to be retrospective in operation unless the judicial tool of prospective overruling is applied. However, retrospective application of a judgment is not in the interest of administration of justice, as it would necessitate the reopening of a large number of criminal cases. Criminal cases decided on the basis of electronic record adduced in evidence without certification have to be revisited as and when objections are taken by the accused at the appropriate stage.
It has been further held that "if the judgment in the case of Anvar is applied retrospectively it would result in unscrambling past transaction and adversely affecting the administration of justice."
If the judgment of "Sonu" (supra) is read as a whole more particularly in the light of ratio laid down in "Anvar PV's" case (supra), then it appears that the present case falls in between the period 04.08.2005 and 18.09.2014 as though the FIR was registered in the year 2003 itself when the judgment of "Navjot Sandhu" (supra) was not even passed, the charge-sheet in the present case, however, has been filed much before the passing of the judgment of "Anvar PV's case" (supra) i.e. much prior to 18.09.2014. Thus, if the mandate laid down in "Sonu" (supra) case is given due weightage, which as per law of jurisprudence has to be given, then it has to be considered accordingly, which seems to be the present facts and circumstances, so far as mandatory requirement of Section 65-B Evidence Act is concerned. Above all, the other evidence, though it is oral, is available on record. Such oral evidence is the testimonies of PW-1 and PW-3.
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284. Another objection has been taken by accused Naresh Sharma and his counsel that testimony of expert PW-5, PW-10 and PW-15 cannot be read in evidence as there is non compliance of directions given under Section 79 A of the Information Technology Act. It is stated that Section 79 A of the Information Technology Act is special law which shall always prevail over the provisions of Section 45 of Indian Evidence Act. It is reflected from the cross examination of PW-5 that he has admitted the fact that CFSL is not notified under Section 79 A of the Information Technology Act. In this regard, judicial notice of the fact can be taken and it is needless to say that CFSL attached with CBI has given and has been giving opinion in thousands of cases and such testimonies of expert, be it handwriting expert or chemical or mechanical expert or any other expert, has been considered as relevant and admissible upto the stage of Hon'ble Supreme Court of India. There has been no observation of various Hon'ble High Courts and Hon'ble Supreme Court of India that such testimonies cannot be considered as not relevant in such eventuality. Therefore, such technical submissions made on behalf of accused cannot be said to be tenable in the eyes of law.
FINAL OBSERVATION
285. In the light of above discussion, it is reflected that all the essential ingredients of Section 7 of Prevention of Corruption Act under which accused has been charged with has been established CC No. 36/2020 CBI Vs Naresh Sharma Page No. 131 of 137 by the prosecution against accused beyond reasonable doubt. Prosecution has established the fact that there is a demand made by accused Dr. Naresh Sharma as he was in advantageous position as holding the post of Deputy Drug controller at CDSCO, FDA Bhawan, who was under a duty to look after the file of grant of written confirmation and its renewal. This fact remains undisputed.
286. Prosecution has also established the fact that there was conversation in between accused accused Dr. Naresh Sharma and Sanjeev Goel on 13.08.2019 as reflected from the CDR exhibited as Ex.PW4/C at a time line of 13:17:12 for about 76 seconds. Prosecution has further established that when complainant (PW-3) on the instructions of Sanjeev Goel, met with accused Dr. Naresh Sharma on 14.08.2019, who demanded Rs.5 Lakhs for grant of written confirmation. Complainant has also proved the complaint Ex.PW3/A (D-1), documents exhibited as Ex.PW3/B (colly) to Ex.PW3/F in this regard have also been established by prosecution against which there is no contradiction emerging from his cross examination. PW-3 has duly corroborated all the averments of complaint in his examination-in-chief.
287. With regard to recorded conversation, Q-1 and Q-2 are supported with expert opinion from CFSL and in that regard PW-5 and PW-15 have been examined, who have given an opinion that questioned voice in the recorded conversation Q-1 and Q-2 is that of accused Dr. Naresh Sharma and complainant Trivender Kumar Rajput. During examination related to recorded conversation, PW-3 stated that when he was sitting in the car of accused on 16.08.2019, CC No. 36/2020 CBI Vs Naresh Sharma Page No. 132 of 137 and was carrying Rs. 4 Lakhs the bribe amount, details of which were already noted down by the CBI team, accused has asked 'kitney hai, chaar hain'. Upon his asking and indication, complainant has stated that he put the bribe amount on the dash board of his car. This in my considered opinion amounts to acceptance of bribe amount. It is needless to say that delivery of bribe amount need not be in the hands of the accused specifically but it can be said to be accepted when it is kept at a place as instructed and indicated by the accused.
288. In this regard, the two terms 'Obtain' and 'Accept' are required to be explained. According to shorter Oxford dictionary:-
"Obtain" means to secure or gain something as the result of request or effort. In case of obtainment, the initiative vests in the person who receives the advantage and in that context, a demand or request from him will be a primary requisite for the offence u/s 7. "Accept" means to take or receive with a consenting mind, which can be gathered from the circumstances surrounding the transaction without any proof of prior demand from the public servant. Therefore, when a person voluntarily offers any gratification or advantage to the public servant who takes or receives the same, it would amount to acceptance of the gratification or the advantage. Prior demand would not be necessary in such cases.
289. Reference can be laid in this regard in case titled as Virendranath Vs State of Maharashtra, (1996) 11SCC 688 in which the bribe money was given to one of the accused at the instance of another accused and not directly received by the main CC No. 36/2020 CBI Vs Naresh Sharma Page No. 133 of 137 accused. Thus, it has been held that recovery of money from the accused himself is not necessary if the circumstances are established that the money has been placed or delivered at the instance of the accused and the money is recovered from that place as well without any scope of intervening circumstances. Accused cannot take the plea of not guilty on the ground that he did not actually receive money.
290. Thus, in the circumstances, in my considered opinion, presumption of Section 20 of the Prevention of Corruption Act is equally applicable in present circumstances.
291. With regard to pre-trap proceedings and post trap proceedings, it has been observed with details in above mentioned paras that all the procedures which have been evolved over a period of time and required to be observed by CBI officials during investigation, have been followed in present case. Pre- trap/verification memo has been duly established in which accused has not been able to point out any contradictions. It is alleged on behalf of accused Dr. Naresh Sharma that the facts that Sanjeev Goel talked with accused Dr.Naresh Sharma on 13.08.2019 and Trivender Kumar Rajput at the instructions of Sanjeev Goel met with accused Dr. Naresh Sharma, has not been established. In this regard, DW-1 examined by accused Dr.Naresh Sharma who brought the circular exhibited as Ex.DW1/A, however, this witness was not able to establish the fact that FDA Bhawan was closed after 12:30pm. As per circular, FDA Bhawan was to be closed after 02:00pm. Accused has not been able to bring on record any CC No. 36/2020 CBI Vs Naresh Sharma Page No. 134 of 137 evidence by which it could be established that after 12:30pm FDA Bhawan was closed and everyone was asked to leave on 14.08.2019 after 12:30pm.
292. On the contrary, PW-3 has categorically stated, not only in his complaint exhibited as Ex.PW3/A and in his statement recorded under Section 161 Cr.P.C, but has corroborated this fact during his examination in the court as well. Thus, the plea of accused that there was no occasion that the complainant met him on 14.08.2019, cannot be considered. The story narrated by the complainant which is supported with facts and circumstances and his testimony is corroborated and considered as authentic.
293. PW-3 has categorically stated which is duly corroborated during his examination as well as corroborated by all other witness and CBI officials that he met with accused Dr. Naresh Sharma on 16.08.2019 and entire conversation in between them were recorded as Q-1 and Q-2 which is further supported with report of PW-5 and PW-15.
294. In this regard, PW-3 has placed on record his gate pass which was issued on 16.08.2019 which is exhibited as Ex.PW3/DD-2, is stated to have been issued at 02:17pm. If the recorded conversation and its transcription Q-1 and Q-2 is perused, then complainant along with independent witness went to FDA Bhawan, before lunch as well as after lunch hours. As per recorded audio conversation and transcription they waited for about 20 minutes at the reception. They are stated to have been reached before 02:00pm CC No. 36/2020 CBI Vs Naresh Sharma Page No. 135 of 137 on 16.08.2019 and the recorded conversation in between complainant and accused has started after 02:20pm approximately. All these facts are reflected from the documents itself and the timings reflected in these documents is matching with the memos prepared by TLO. Thus, all these facts stands corroborated in my considered opinion that complainant had visited the office of accused Dr. Naresh Sharma and as reflected from the transcription Q-1 and Q-2, as mentioned above, keeping in mind that the said audio conversation is stated to be containing the voice of accused Dr. Naresh Sharma as well which is corroborated by the testimonies of complainant and other witnesses, the defence taken by accused Dr. Naresh Sharma cannot be said to be established.
295. PW-13 and PW-19 has stated that accused Dr. Naresh Sharma was not in his office after lunch on 16.08.2019, however, it has come on record in his testimony itself that they have stated that he was not in his office till 03:00pm approximately. Keeping in mind the testimony of DW-2, the presence of accused Dr. Naresh Sharma at Axis bank for updation of his aadhar card cannot be disputed, as already mentioned above, however, the later story, as already considered above narrated by DW-3 is not found to be convincing as her testimony do not inspire her confidence. It has been observed that documentary evidence being primary evidence always has to prevail upon oral testimony. Thus, in my considered opinion the defence of the accused that he was not in his office on
296. Last but not the least, accused Dr. Naresh Sharma has been CC No. 36/2020 CBI Vs Naresh Sharma Page No. 136 of 137 apprehended red handed from the spot along with bribe amount of Rs.4 Lakhs which is stated to have been recovered from his Red Colour Wagon R bearing registration No. DL7CH 4789 now it is for the accused to explain as to how he happens to be there in his Red Colour Wagon R bearing registration No. DL7CH 4789 and how complainant happens to be in his car in the evening of 19.08.2019 after official hours and how the bribe amount of Rs. 4 Lakhs details of which already noted down by CBI officials and was also found matched after recovery from his car. It is also for the accused to explain as how the parking sticker which was lying on the dash board of his car and on which bribe amount was placed at his instance, was found containing phenolphthalein powder with which the bribe amount of Rs.4 Lakh was also tainted. No explanation has been furnished by the accused contrary to all these facts.
297. Therefore, in the light of above discussion, I am of the opinion that prosecution has been able to establish its case and liability of the accused Dr. Naresh Sharma beyond reasonable doubt. Therefore, charge under Section 7 of the Prevention of Corruption Act stands established. Accused Dr. Naresh Sharma is convicted under Section 7 of the Prevention of Corruption Act, 1988.
298. Arguments on sentence shall be heard separately.
Digitally signed by
Pronounced in the open court PRASHANT PRASHANT KUMAR
KUMAR Date: 2024.09.11
on 09.09.2024 15:03:17 +0530
(PRASHANT KUMAR)
SPECIAL JUDGE (PC ACT) (CBI)-07
ROUSE AVENUE COURTS
NEW DELHI
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