Delhi District Court
Sc No. 82/08 Ncb vs . Jagdeo Singh & Ors. on 21 December, 2013
SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
IN THE COURT OF MS. ANU GROVER BALIGA: SPECIAL JUDGE
NDPS: PATIALA HOUSE COURTS: NEW DELHI
SC No. 82/08
ID No. 02403R0706952007
FIR No. 18/07
PS Special Cell
u/s 21, 29 of NDPS Act, 489C, 120B IPC and 25 Arms Act
State Versus 1. Jagdeo Singh @ Jagga
S/o Sardar Balwinder Singh
R/o F438, Ganga Vihar,
Gokul Puri, New Delhi.
2. Gurdeep Singh
S/o Sh. Kirpal Singh
R/o Railway Patri, Simbal, More,
Jammu, Jammu & Kashmir.
3. Sukhwinder Singh @ Sukhi
S/o Sh. Gujant Singh
R/o Village Chhannanwal,
Distt. Barnala, Punjab.
Date of Institution : 12.09.2007
Judgment reserved on : 11.12.2013
Date of pronouncement : 21.12.2013
Final order : Conviction
JUDGMENT
1. The chargesheet in the present case has been filed against the aforementioned accused persons u/s 21, 29 of the Narcotic Drugs and FIR No. 18/07 PS Special Cell Page 1 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
Psychotropic Substances Act (hereinafter referred to as 'NDPS Act') and section 489C and 120B of the Indian Penal Code (hereinafter referred to as 'IPC') and section 25 of the Arms Act.
2. Briefly stated the allegations against the accused persons as contained in the chargesheet are as follows:
(a) On 23.03.2007, Inspector Anil Dureja received a secret information that a person named Gurdeep Singh Lahoria, an active member of KZF (Khalistan Zindabad Force) is involved in smuggling of drugs and he alongwith his accomplice Jagdeo Singh @ Jagga was going to deliver consignment of smack/heroin to one Nigerian at Mother Dairy, Pandav Nagar on a Pulsar motorcycle bearing no. DL 7SAZ 2142.
(b) Inspector Anil Dureja endorsed the said information and discussed it with ACP/Special Cell/NR. He thereafter constituted a raiding team consisting of himself, SI Harbir Singh, SI Ramesh Sharma, SI Ranbir Singh, SI Kishan Lal, HC Suresh Chand, HC Ramesh Kumar, Ct. Anil Kumar, Ct. Ajay Kumar, Ct. Hawa Singh and Ct. Om Prakash which left the office of Special Cell in a government vehicle no. DL 1CJ 3566 and reached the spot.
(c) On the way to Mukarba Chowk and also at the spot, the police team asked 23 passersby to join the raiding team but none agreed. At about 07.30 PM, one Pulsar motorcycle no. DL 7SAZ 2142 stopped near FIR No. 18/07 PS Special Cell Page 2 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
public toilet, Patparganj Road, Ganesh Nagar crossing. The said motorcycle was being driven by accused Gurdeep Singh who was carrying a black colour bag on his shoulder, from which he took a polythene bag and handed the same over to the pillion rider named accused Jagdeo Singh. Thereafter, Gurdeep Singh remained near the motorcycle and Jagdeo Singh stood at the Ganesh Nagar crossing and at this point of time, both of them were intercepted by the raiding team.
(d) SI Harbir Singh with the help of Ct. Ajay Kumar apprehended Jagdeo and SI Ranbir Singh with the help of HC Ram Kumar apprehended Gurdeep Singh. Both of them were served with notices u/s 50 NDPS Act and were made to understand that they have a legal right to be searched before a Gazetted Officer or a Magistrate but they both refused to exercise the said right and their refusal was written by them on the notices issued to them.
(e) Thereafter, from the polythene bag carried by Jagdeo Singh, two packets wrapped in yellow colour tape were recovered which were found weighing 1 kg each. The said two packets were then opened and were found to contain light skin colour powder which as per Jagdeo Singh, was heroin. Samples were then drawn out from the said substance and thereafter the samples, the remaining substance alongwith the packing material were sealed in separate pullandas. Seizure memo was then FIR No. 18/07 PS Special Cell Page 3 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
prepared and FSL form was filled. Thereafter, cursory search of accused Jagdeo Singh was conducted by SI Harbir Singh and one pistol, one magazine and eight live cartridges were recovered from him which were also sealed in separate cloth pullandas and in respect of the said seizure, a separate memo and form FSL were prepared.
(f) Thereafter, the black bag carried by Gurdeep Singh was checked and it was found to contain two packets wrapped in yellow colour tape weighing 1 Kg each which in turn were found to contain skin coloured powder which, as per Gurdeep Singh, was heroin. Samples were then drawn out from them and thereafter the samples, the remaining substances were sealed in separate pullandas. Seizure memo regarding the same was prepared and FSL form was filled.
(g) Case was then registered and further investigation was handed over to SI Upendra Solanki who prepared the site plan and arrested both the accused persons. Personal search of both the accused persons was again conducted by SI Upendra Solanki and 27 currency notes of denomination 1000 were recovered from the personal search of accused Jagdeo and two currency notes of denomination of Rs.1000 were recovered from the personal search of accused Gurdeep. Disclosure statements of both the accused persons were recorded and in the said statements, the accused persons inter alia disclosed that the currency notes recovered from them FIR No. 18/07 PS Special Cell Page 4 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
were fake and they were in the business of drugs, arms, ammunitions and fake currency alongwith Sukhwinder @ Sukhi and others. On the basis of this disclosure, the currency notes were seized vide a separate memo and a FSL was also prepared with respect to the said seizure.
(h) Statement of witnesses u/s 161 Cr.PC were recorded and report u/s 57 NDPS Act was prepared. During the course of investigation, call detail records of the mobile numbers recovered from the accused persons were obtained.
(i) On 04.04.2007, the recovered pistol, 8 cartridges and the samples of recovered heroin with FSL forms of this case were sent to FSL, Rohini and after receiving the reports from FSL that the currency notes recovered were counterfeit and the drugs recovered contained high percentage of diacetylmorphine, the present chargesheet was filed on 12.09.2007 after taking sanction u/s 39 of the Arms Act.
(j) Thereafter on 2/7/2008 an application seeking production warrants for accused Sukhwinder was filed inter alia mentioning therein that this accused has been arrested in FIR No. 77/07 PS Special Cell, on 26/2/2008 and the disclosures, records of seized mobile phones and intercepted calls on electronic surveillance in the said case had revealed that this accused was dealing in drugs, illegal arms and fake currency in conspiracy with accused Jagdeo and Gurdeep and that accused FIR No. 18/07 PS Special Cell Page 5 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
Sukhwinder had been in continuous telephonic touch with both accused Jagdeo and Gurdeep Accused Sukhwinder was then produced and arrested in the present case. Subsequently an application was also filed for taking the voice samples of accused Gurdeep and Jagdeo for comparison with the voices appearing in the intercepted mobile conversations but the said accused persons refused to give their voice samples. Finally on 20.01.2009, a supplementary chargesheet was filed against Sukhwinder inter alia asserting therein that the investigating agency had collected sufficient evidence to show that this accused had conspired with accused Gurdeep and Jagdeo for supply of drugs, arms and fake currency in Delhi. Vide the supplementary chargesheet, it was prayed therefore that accused Sukhwinder be also chargesheeted in the present case and the prosecution be permitted to file the recorded phone conversations on record.
3. On the basis of the material on record vide order dated 13.07.2009 charges were framed against the accused persons for having conspired to deal in drug trafficking and fake currency notes and in pursuant thereto (accused Jagdeo and Gurdeep) for having been found in possession of commercial quantity of heroin and fake currency and for thus having committed offences punishable u/s 21 r/w section 29 of the NDPS Act and section 120B and section 489C of IPC. An additional charge against FIR No. 18/07 PS Special Cell Page 6 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
accused Jagdeo for having been found in possession of one pistol alongwith eight live cartridges and thereby having committed an offence punishable u/s 25 of the Arms Act, was also framed. All the accused persons pleaded not guilty to the said charges and claimed trial.
4. In order to prove its case against the accused persons, the prosecution has examined 29 witnesses in all.
5. PW16 Inspector Anil Dureja, PW1 SI Harbir Singh, PW4 SI Ranbir Singh and PW10 HC Ajay being all members of the raiding team have deposed on similar lines and have reiterated more or less the assertions made in the charge sheet. PW16, who had received the secret information has inter alia proved DD No. 20, in which the secret information received by him was reduced and the same has been exhibited as Ex.PW16/A. PW1 SI Harbir Singh, the main investigating official has narrated in detail, the entire investigation done by him. As per his deposition, the notice issued to accused Gurdeep u/s 50 of the NDPS Act has been exhibited as Ex.PW1/D and notice issued to accused Jagdeo has been marked as PW1/A. The seizure memos prepared with respect to the recovery of the contraband from accused persons have been exhibited as Ex.PW1/A and E and the seizure memo prepared with respect to the recovery of pistol, magazine, cartridges has been exhibited as Ex.PW1/C and their sketch has been exhibited as Ex.PW1/B. The tehrir prepared at FIR No. 18/07 PS Special Cell Page 7 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
the spot has been exhibited as Ex.PW1/F. The report prepared by PW1 u/s 57 NDPS Act has also been proved by him as Ex.PW6/C. This witness has also inter alia deposed about the surveillance of the mobile phone of accused Sukhwinder, vide which he became aware about the conspiracy between Sukhwinder and accused Jagdeo and Gurdeep. He has also deposed about the handing over of a pen drive containing the intercepted mobile conversations between accused Sukhwinder and Jagdeo and Gurdeep, to IO SI Upendra Solanki.
6. PW17 Inspector Upendra Solanki is the second investigating officer of the present case who has inter alia deposed that on reaching the spot he had met Inspector Anil Dureja who had produced before him the documents prepared by him and the accused persons Jagdeo and Gurdeep. As per this witness he thereafter prepared the site plan Ex.PW17/A and then interrogated the accused persons and thereafter recorded the disclosure statements of accused persons, Ex.PW1/O and Ex.PW1/P and also arrested them vide arrest memos, Ex.PW1/K and Ex.PW1/M. The seizure memos prepared with respect to the recovery of the Motor cycle no. DL 7SAZ 2142 and mobile phones have been exhibited as Ex.PW1/G, Ex.PW1/A and Ex.PW1/J respectively. The seizure memo of currency notes recovered from the possession of both the accused persons have been exhibited as Ex.PW4/B and Ex.PW4/A. FIR No. 18/07 PS Special Cell Page 8 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
Supplementary disclosure statements of accused persons have been exhibited as Ex.PW1/Q and Ex.PW1/R. The report prepared by him u/s 57 NDPS Act has also been proved by him as Ex.PW6/E. This witness has also thereafter deposed about the investigation done by him with respect to accused Sukhwinder. As per the deposition of this witness, on 02.04.2008, he had collected the intercepted mobile conversations that had taken place between the three accused persons from SI Harbir Singh in a pen drive and had thereafter downloaded the said calls in a DVD/CD which have been also duly exhibited. As per this witness on 26/7/2008 with the permission of Court he had interrogated the accused Sukhwinder and had thereafter recorded his disclosure statement, Ex.PW18/A and had also arrested him vide arrest memo, Ex.PW18/B. The report prepared by him u/s 57 NDPS Act regarding arrest of accused Sukhwinder has also been proved by him as Ex.PW17/E.
7. PW2 Amit Kumar, Assistant Nodal Officer from Vodafone (Punjab) has inter alia deposed that in the year 2007, he was handed over the search details of phone having IMEI no. 35454001839622 from 01.03.2007 to 24.03.2007. He has proved on the record the search details of the said handset as Ex.PW2/A.
8. PW3 SI Kishan Pal has inter alia deposed that he was the duty officer on 23.03.2007 and that on this date he had received the rukka of the FIR No. 18/07 PS Special Cell Page 9 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
present case through Ct. Ajay and had registered the FIR, Ex.PW3/A and made endorsement on the rukka, Ex.PW3/B.
9. PW5 HC Mahavir Singh has inter alia deposed that he was posted as MHCM(M) at PS Special Cell on 23.03.2007 and that on this date, SHO of the said PS had deposited with him six pullandas sealed with the seals of HS and PNC alongwith the three FSL forms and carbon copy of three seizure memos and that the said property was deposited by him in the malkhana vide entry 957, Ex.PW5/A. He has also deposed that on 24.03.2007, SI Upendra Solanki deposited one motorcycle bearing no. DL 7SAZ 2142 with him and the articles of personal search of accused Gurdeep and Jagdeo Singh which were taken in possession by him vide entry at Sl. No. 958, Ex.PW5/B. He has further deposed that on 26.03.2007, SI Upendra Solanki deposited one pullanda sealed with the seal of US having two mobile phones recovered from accused Gurdeep Singh ad one sealed pullanda sealed with the seal of US having three mobile phones recovered from accused Jagdeo Singh which were taken in possession by him vide entry at Sl. No. 959, Ex.PW5/C. This witness has further deposed that on 24.07.2008 SI Upendra Solanki handed over to him one envelope sealed with the seal of US which was having four DVD and CDs which were having calls pertaining to accused Sukhwinder, Gurdeep and Jagdeo Singh which were taken in possession FIR No. 18/07 PS Special Cell Page 10 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
by him vide entry no. 1178, Ex.PW5/D. As per this witness again on 28.07.2008 SI Upendra Solanki handed over to him one parcel sealed with the seal of US which was having the voice samples of Sukhwinder Singh which were taken in possession by him vide entry no. 1182, Ex.PW5/E.
10.PW6 SI Srinivasan, SO to ACP, Special Cell has inter alia deposed that as per the record produced by him, on 23.03.2007, DD No. 20 regarding the receipt of secret information by Inspector Anil Dureja was received in the office of ACP. This witness has further deposed that on 24.03.2007, two report u/s 57 NDPS Act, prepared by SI Harbir Singh were also received in the office of ACP regarding arrest of accused Jagdeo Singh and Sukhwinder Singh and seizure of heroin from them and that said reports were put before ACP. This witness has further also deposed that the report u/s 57 NDPS Act prepared by SI Upendra Solanki regarding the arrest of accused Sukhwinder Singh was received at the ACP office on 28.07.2008. The reports and records produced by this witness have been duly exhibited during his testimony.
11. PW7 Dr. K.C. Varshney is the expert who had examined the pistol and cartridges recovered from the possession of accused Jagdeo and the report prepared by him in this respect has been exhibited as Ex.PW7/A. FIR No. 18/07 PS Special Cell Page 11 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
12.PW8 ASI Paramjeet Singh, Malkhana Incharge has inter alia deposed about the deposit of the case property/jamatalashi articles with the malkhana on various dates and has also proved the relevant entries thereof in the malkhana register.
13.PW9 R.K. Singh, Nodal Officer has proved on record the call details pertaining to mobile numbers 9871060613 and 9910117964 for the period 01.03.2007 to 07.08.2007 and the same have been exhibited as Ex.PW9/A and Ex.PW9/B respectively. He has also placed on record the customer application form of the mobile no. 9876933745.
14. PW11 HC Ram Kumar has inter alia deposed that on 04.04.2007 on the instructions of Inspector Upendra Solanki, he had taken the exhibits related to this case vide RC numbers 34/21/2007, 35/21/2007 and 36/21/2007 and got the same deposited with FSL, Rohini and had obtained receipt and handed over the same to MHC(M). He has also specifically deposed that so long as the case property remained with him, it was not tampered with.
15.PW12 Ms. Deepa Verma, Assistant Director, FSL has inter alia deposed that on 04.04.2007, she had received the 29 currency notes marked as Q1 to Q29 and after examination, opined that the same were counterfeit in nature. The report prepared by the said expert in this respect has been exhibited as Ex.PW12/A. FIR No. 18/07 PS Special Cell Page 12 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
16.PW13 Inspector Paras Nath has interalia deposed that on 23.03.2007, he was posted as SHO, PS Special Cell and on that day, Inspector Anil Dureja had produced before him, 15 sealed pullandas, three FSL Forms and three carbon copies of Seizure Memo. As per the deposition of this witness, he had put the FIR number, his initials and his seal 'PNC' on all the pullandas and the FSL form and had then got the said property deposited in the Malkhana by HC Mahavir Singh, MHC(M). He has further deposed that at about 01.45AM on the same day, SI Upendra Solanki had produced the accused persons Gurdeep and Jagdeo before him.
17. PW14 Dr. Madhulika Sharma, Assistant Director, FSL Rohini has proved the report prepared by her with respect to the analysis conducted by her of the four contraband samples sent to FSL. The said report has been exhibited as EX PW14/A and as per the said report, the said four samples Mark S1, S3, S5 and S7 were found to contain monoacetylmorphine, acetyl codeine and diacetylmorphine and the percentage of diacetylmorphine were found therein to be 31.6%, 41.2%, 26.0% and 34.8%.
18. PW15 Deepak, Assistant Nodal Officer, Vodafone Essar has proved on record the call details pertaining to mobile numbers 9911328172, 9873836607, 9811538286, 9811607709 and 9999579926 for the period FIR No. 18/07 PS Special Cell Page 13 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
01.03.2007 to 07.08.2007 and the same have been exhibited as Ex.PW15/A and PW15/B respectively.
19.PW18 HC Raj Singh and PW19 Ct. Prem Singh have inter alia deposed that on 26.07.2008, the accused Sukhwinder Singh was formally arrested by the IO in this case in the court of Ld. MM and his disclosure statement was also recorded.PW18 has proved on record the arrest memo of accused as Ex.PW18/B and his disclosure statement as Ex.PW18/A.
20.PW20 O.P. Kelkar, Retired Principal Secretary, Home, GNCT of Delhi, PW26 Vivek Duggal, Secretary to the Government of India, Ministry of Home Affairs and PW27 Sh. Karnal Singh, Joint Commissioner of Police have all inter alia deposed about the permission orders granted with respect to the surveillance of the mobile numbers in question. The said orders have been exhibited as Ex.PW20/A, PW20/B, PW26/A, PW26/B and PW26/C. The communications vide which the said permissions were conveyed to the concerned Nodal Officers have been exhibited as Ex.PW27/A and PW27/B.
21. PW21 A.D. Tiwari, Senior Scientific Officer, CFSL has inter alia deposed that on 28.07.2008, he had received a request letter from ACP, Special Cell regarding collection of voice sample of accused Sukhwinder Singh and he was deputed for taking the same by the head of the division and pursuant thereto, he had collected the voice sample of this accused. FIR No. 18/07 PS Special Cell Page 14 of 89
SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
22.PW22 Sh. Alok Kumar, was the DCP Special Cell during the relevant time and he has inter alia deposed that he had given sanction u/s 39 of the Arms Act after perusing the police papers and other evidence on record regarding recovery of 1 pistol .30 bore along with 8 live cartridges without license from the possession of accused Jagdeo Singh. The sanction order u/s 39 of Arms Act has been exhibited as Ex.PW17/ B .
23.PW23 Inspector Yugraj Kishan has inter alia deposed that on 1/2/2008 he had gone to PS Sidhwa Bet near Patiala at Punjab and after apprising SHO PS Sidhwa Bet about the facts of FIR no. 77/07, had collected the mobile phones and SIM cards recovered from the possession accused Sukhwinder vide RC no. 20/2008 PS Sidhwa Bet. According to this witness, he had handed over the said mobile phones and SIM cards to ACP Ravi Shankar, IO of case FIR no.77/2007 who sealed the same with the seal of RKS and seized the same vide seizure memo mark X9.
24.PW24 Inspector Preetam Singh, Incharge Electronic Wings, Mohali Punjab has inter alia deposed that on 20/8/2007 he along with SI Swarn Singh, ASI Satnam and other staff had arrested the accused Sukhwinder Singh in FIR no. 164/07 u/s 21 NDPS Act PS Sidhwan Bet and from the personal search of accused Sukhwinder 11 SIM cards and 5 mobiles were recovered. Seizure memo with respect to recovery of 11 SIM cards and 5 mobiles has been exhibited as Ex.PW24/A. FIR No. 18/07 PS Special Cell Page 15 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
25.PW25 HC Sanjeev, MHCM PS Special Cell has merely deposed that on 2/2/2008 ACP Ravi Shankar had deposited the case property of case FIR no. 77/2007 in the malkhana including one mobile black colour model 62301 type RM 72 Nokia IMEI no. 3583681001049930/0 recovered from the possession of accused Sukhwinder in case FIR no. 164/2007. The entries of register no. 19 has been exhibited as Ex.PW25/A.
26.PW28 Dr. Rajender Singh, Principal Scientific Officer, CFSL CBI has proved the report prepared by him with respect to the analysis conducted by him of the voice samples of accused Sukhwinder. The said report has been exhibited as EX PW28/A and as per the said report, the questioned voice of accused Sukhwinder tallied with specimen voice of accused Sukhwinder in respect of his linguistic, phonetic and other general spectographic parameters.
27. PW29 Colonel A.K. Sachdeva, Nodal Officer from Reliance Communications Ltd. has produced before the court the call detail records of the telephone number 9317534945 (the mobile used by accused Sukhwinder) for the period 1/6/2007 to 2/6/2007 and the same have been exhibited as Ex.PW29/D. The said witness has also produced the customer application form, ID proof and residential proof with respect to the said number. Same have been exhibited as Ex.PW29/A, Ex.PW29/B and Ex.PW29/C respectively. According to this witness, on FIR No. 18/07 PS Special Cell Page 16 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
18/7/2008 the CDR, CAF and Cell ID of Delhi and NCR Region was supplied by the duty executive Sh. Raj Kumar to ACP Special Cell, NR Rohini vide letter Ex.PW29/E.
28.PW30 Inspector Sandeep Malhotra has deposed that on 2/4/2008 he was posted as Inspector, Electronic Data Processor (EDP) with Special Cell, NR Rohini and on the said day, he was directed by ACP Ravi Shankar to allow SI Harbir Singh and SI Upendra Solanki to peruse the intercepted information of certain numbers which they required for FIR No. 18/07 and in his presence SI Harbir Singh copied the relevant calls in his pen drive.
29.The entire evidence discussed hereinabove was put to the accused persons and their statements were recorded u/s 313 Cr.PC. All the accused persons denied their complicity in the present case and stated that they have been falsely implicated. Accused Jagdeo in his statement u/s 313 Cr.PC has inter alia deposed that he was forcibly picked up by the police officials in this case on 23.03.2007 at about 05.30 PM from Faridabad while he was going to the market with his wife and 8 year old daughter. As per the statement tendered by this accused, SI Harbir Singh alongwith two other police officials had stopped and asked him to accompany them to their gypsy vehicle and SI Harbir Singh had told him that 'Saheb' wants to enquire something from him and when he refused to FIR No. 18/07 PS Special Cell Page 17 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
accompany them, he was pushed into the gypsy by the said officials. This accused has further stated that thereafter the said officials tied his hands with rope and covered his face with a cloth and the vehicle was then taken to Dhaula Kuan and thereafter to Laxmi Nagar where he was shifted from the said gypsy to a private Wagon R car and in the said Wagon R, he saw that his coaccused Gurdeep Singh alongwith Inspector Upendra Solanki were already sitting. This accused has further stated that thereafter he and Gurdeep were taken to Special Cell, Rohini and beaten by the police officials. He has also inter alia stated that none of the documents filed on record by the prosecution purportedly signed by him bear his signatures. According to him, he has been falsely implicated in this case only because in the year 1999 when he was arrested in a dacoity case, he had filed a complaint against the IO of the said case, SI Ombir Singh that the said police official had demanded dacoity amount from him and based on the said complaint, SI Ombir Singh was dismissed from services and that his cousin SI Harbir Singh, IO of this case, to take revenge from him has now falsely implicated him in this case. As regards the intercepted mobile phone conversations, this accused has taken a stand that the conversations are not in his voice.
30.Accused Gurdeep in his statement u/s 313 Cr.PC has inter alia stated that in the year 1997 he was working as a Sewadar in Gurudwara Damdama FIR No. 18/07 PS Special Cell Page 18 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
Saheb, Nizamuddin and merely because he had given one room in the said Gurudwara to a person who was later on discovered to be a terrorist, he was falsely arrested in two cases of bomb blast by one Inspector Puran Singh of Special Cell, Lodhi Colony. He has further inter alia stated that he was finally acquitted in the said two cases in the year 2004 but even after his acquittal, one police official SI Ramesh Sharma from PS Special Cell, Lodhi Colony kept visiting him and enquiring him about his activities after his acquittal. This accused has further stated that after his acquittal in the said two cases, he had started working as a Sewadar in Gurudwara Sheeshganj and that SI Ramesh Sharma used to visit him there also and sometimes he was also asked to appear in the office of Special Cell, Rohini which he used to do and that the same continued for about one or two years and that when he finally got fed up by going to PS again and again, he told SI Ramesh Sharma that if he continues to harass him, he will file a petition against him in the court. According to the accused, after about a month of telling him so, SI Ramesh Sharma came to Gurudwara Sheeshganj on 23.03.2007 and asked him to accompany him and that on the said date, SI Ramesh Sharma was talking very politely to him and told him that it was the last time that 'Saheb' wants to talk to him. The accused has further stated that since SI Ramesh Sharma had very politely asked him, he agreed to go alongwith him and gave the FIR No. 18/07 PS Special Cell Page 19 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
keys of his motorcycle bearing no. DL 7SAZ 2142 to one Gurlal (another Sewadar who was present when SI Ramesh had come) and told him that the motorcycle was parked in the parking lot of museum opposite the Gurudwara and that he can keep the keys with himself. The accused has then further gone on to state that SI Ramesh Sharma then made him to sit in a Wagon R car and as soon as he was seated, his hands and eyes were tied and that before the same was done, he had noticed 23 more police officials sitting in the said Wagon R car including Inspector Upendra Solanki. He has also further stated that the Wagon R car was then taken to various places in Delhi and though his eyes were covered, he did hear the name Laxmi Nagar where the vehicle was stopped for about 510 minutes and that he could make out that another person was put in the Wagon R who was shouting as to why he had been caught and that he only later on came to know that the said person was Jagdeo, his coaccused in the present case. This accused has further asserted that he was beaten mercilessly by the police officials with dandas and when he could not any longer take the beatings, at the instance of police officials, he signed 2022 papers and also wrote 23 lines on a blank paper to the effect that he did not want the presence of Gazetted Officer or a Magistrate. He has further stated that till date, he has pain in his backbone and that when he was sent to Tihar Jail, the doctor on duty had FIR No. 18/07 PS Special Cell Page 20 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
examined him and had recorded that he had various injuries on his body.
31. As regards his acquaintance with accused Sukhwinder, this accused has asserted that he knew accused Sukhwinder only because Sukhwinder on few occasions had come to Gurudwara Sheeshganj and he being the Sewadar, had been instructed by the officials of the Gurudwara to open the room allotted to him.
32.Accused Sukhwinder in his statement u/s 313 Cr.PC has also similarly stated that he has been falsely implicated in this case and that he had not made the conversations which the prosecution is relying upon to contend that he in conspiracy with his coaccused Jagdeo and Gurdeep had supplied drugs, arms and ammunitions and fake currency notes to them. According to him, he has been falsely implicated in this case because he had dared to do the pairvi of Daya Singh Lahoria and Devender Pal Singh who were arrested by the police in terrorist cases.
33.In support of their defence, accused Gurdeep and Jagdeo have called for their medical documents from Tihar Jail and DW1 Dr. Anand Kumar has filed on record the medical examination records of accused Gurdeep and Jagdeo. DW2 Pargat Singh is the Sewadar in Gurudwara Sheeshganj Saheb and he has inter alia deposed that on 23.03.2007 at about 02.30 PM, he alongwith accused Gurdeep and another Sewadar Gurlal were standing at the STD booth near Gurudwara when a person FIR No. 18/07 PS Special Cell Page 21 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
came and told Gurdeep "sahab bula rahe hain" and took Gurdeep alongwith him. He has also inter alia deposed that before going, Gurdeep told Gurlal that his bike is parked in front of the museum opposite the Gurudwara and that Gurlal should bring the bike inside the Gurudwara premises and park it. DW3 Sh. S.K. Jain, Deputy Director, CFSL, Chandigarh was summoned by the accused Jagdeo and the said witness has placed on record the RTI applications received by CFSL, Chandigarh from accused Jagdeo. DW4 Deepak, Nodal Officer, Vodafone was summoned by accused persons to produce the call detail records of two phone numbers 9811328172 and 9873836607 for the period 01.02.2007 to 21.04.2007.
34.After the conclusion of entire evidence on behalf of the State, Ld. APPs Sh. Gurjar and Sh. Rajiv Mohan have advanced final arguments while on behalf of the defence, Ld. Counsel Sh. Das, Sh. R.D. Rana and Sh. Arvind Kumar have advanced final arguments. Written submissions have also been filed on record on behalf of all the parties.
35.On behalf of the State, Ld. APPs have submitted that the prosecution has, by bringing sufficient evidence on record, been able to prove that all the three accused persons had conspired to commit illegal trafficking of drugs, fake currency and arms and ammunitions. They have pointed out that the prosecution has brought on record the recordings of the mobile FIR No. 18/07 PS Special Cell Page 22 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
phone conversations that took place between the three accused persons and the transcripts of the same prove beyond a doubt that accused persons had entered into a criminal conspiracy to deal in trafficking of fake currency, arms and ammunitions and heroin. They have further submitted that the deposition of the members of the raiding team which had apprehended the accused Gurdeep and Jagdeo clearly prove that the said accused were apprehended when they had come to deliver heroin to a third party, pursuant to the conspiracy hatched by them. Their submission therefore is that the prosecution has been able to prove its case against all the three accused persons beyond reasonable doubt.
36.On the other hand, the contention of the defence is that the entire case of the prosecution is concocted and false and that the same stands infact proved by the fact that the signature of accused Jagdeo have been found forged on the documents allegedly prepared at the spot. It is the contention of the defence that when on an application filed on behalf of accused Jagdeo, one of the Ld. Predecessor of this court had sent the said documents to a handwriting expert and the said expert opined that the handwriting on the said documents did not appear to be of accused Jagdeo, it is only then that the investigating agency fabricated the so called mobile conversations between the accused persons and filed a false supplementary chargesheet against accused Sukhwinder. It has been FIR No. 18/07 PS Special Cell Page 23 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
vehemently contended that if the investigating officials were in the knowledge of the so called mobile conversations between the accused persons since March, 2007, why the same were not made a part of the original chargesheet. Various contradictions have also been pointed out in the depositions of the prosecution witnesses to contend that the prosecution has not come forward with a true and correct version of the manner of apprehension of the accused persons. Reliance has also been placed upon the medical reports of accused Gurdeep and Jagdeo, prepared by the Tihar Jail doctors to contend that the said two accused persons were mercilessly beaten by the police officials after their arrest and forced to sign documents on the instructions of the police officials.
37. In rebuttal, it has been submitted on behalf of the State that the phone conversations between Sukhwinder and the other two accused persons in the present case were not brought before the court because the said calls had been intercepted during the investigation of case FIR No. 77/07 which was registered under section 120A and 120B of IPC and under the provisions of Unlawful Activities (Prevention) Act and that the senior police officials investigating the said case had taken a conscious decision that the intercepted calls should not be made public till the entire network of the terrorists is exposed in the said FIR and therefore it was only after the investigation was completed and chargesheet was filed in FIR No. 18/07 PS Special Cell Page 24 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
FIR No. 77/07 that the intercepted mobile phone conversations between the accused persons in the present case were made a part of the supplementary chargesheet and filed. It has also been contended by Ld. APPs that the report of the handwriting expert cannot be read to infer that the signature of accused Jagdeo have been forged on various documents prepared at the spot. The submission of Ld. APPs is that infact accused Jagdeo is a hardened criminal and that he had deliberately put his signatures on the said documents in a different manner than the manner in which he gave his specimen signature before the court. As regards the medical reports, the submission of Ld. APP Sh. Rajiv Mohan is that the accused persons had not complained about having received any injuries at the hands of the investigating officers, before the Ld. Judge who had granted police custody of seven days of these accused persons to the investigating officials, when the said accused persons had been produced before the Ld. Judge for the first time after their arrest on 24.03.2007. His submission is that the Ld. Judge had granted police custody of the accused persons only after being satisfied about the necessity and the desirability of the same and that therefore there is no force in their contention that they were forced to sign various documents and that infact nothing was recovered from them.
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38.I have considered the submissions made by all the Ld. Counsels and have carefully perused the entire record and the judicial dicta referred to by the Ld. Counsels. Though it is a well settled principle of criminal jurisprudence that prosecution has to prove its case beyond all reasonable doubt and that it is not for the accused persons to prove their defence, it is also equally true that if the defence being put forward by the accused persons is found to be patently false, the version being put forward by the prosecution is not to be doubted merely on the basis of presumptions and conjectures. In a judgment pronounced by the Hon'ble Supreme Court in a case titled as Iqbal Moosa Patel Vs. State of Gujarat reported in 2011(1) JCC (Narcotics) 35 it has been observed by the Hon'ble Supreme Court that though it is true that under our existing jurisprudence in a criminal matter, we have to proceed with a presumption of innocence, but at the same time, that presumption is to be judged on the basis of conceptions of a reasonable prudent man and the prosecution is not required to meet any and every hypothesis put forward by the accused. It was further observed that a reasonable doubt is not an imaginary, trivial or merely possible doubt but a fair doubt based upon reason and common sense and must necessarily grow out of the evidence in the case.
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39.Now let us examine, what is the version of the prosecution with respect to the interception of the accused persons Gurdeep and Jagdeo and what are the doubts that are sought to be raised by the defence with respect to the said version. As narrated hereinabove, as per the version put forward by the prosecution, on receiving a secret information that both accused Gurdeep and Jagdeo would be coming to deliver a consignment of heroin to one Nigerian at Mother Dairy, Pandav Nagar, a raiding team was on surveillance in the said area and saw that both accused Jagdeo and Gurdeep came on a Pulsar motorcycle on Patparganj road at about 07.30 PM and stopped near a public toilet at the Ganesh Nagar crossing and thereafter Gurdeep Singh who was driving the motorcycle and was carrying a black colour bag on his shoulder, took out a polythene bag from the said black bag and handed over the same to the pillion rider Jagdeo Singh, who then went and stood at the Ganesh Nagar crossing and at this point of time both of them were intercepted by the raiding team and thereafter on search of the accused persons, contraband was recovered. All the members of the concerned raiding team have deposed consistently in this regard.
40.The said version of the prosecution has been denied by both the accused Jagdeo and Gurdeep in their statements tendered u/s 313 Cr.PC. Accused Jagdeo in his statement tendered u/s 313 Cr.PC has inter alia deposed FIR No. 18/07 PS Special Cell Page 27 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
that he was forcibly picked up by the police officials in this case on 23.03.2007 at about 05.30 PM from Faridabad while he was going to the local market with his wife and 8 year old daughter. As per the statement tendered by this accused, SI Harbir Singh alongwith two other police officials had stopped and asked him to accompany them to their gypsy vehicle and SI Harbir Singh told him that 'Saheb' wants to enquire something from him and when he refused to accompany them, he was pushed into the gypsy by the said officials. This accused has further stated that thereafter the said officials tied his hands with rope and covered his face with a cloth and the vehicle was then taken to Dhaula Kuan and thereafter to Laxmi Nagar where he was shifted from the said gypsy to a private Wagon R car and in the said Wagon R, he saw that his coaccused Gurdeep Singh alongwith Inspector Upendra Solanki were already sitting. This accused has also taken a stand that he did not know his coaccused Gurdeep Singh before his arrest in this case.
41. As regards accused Gurdeep Singh, he in his statement tendered u/s 313 Cr.PC has also taken a stand that he did not know his coaccused Jagdeo at all, before his arrest in this case and that on 23.03.2007 he was picked up by one police official SI Ramesh Sharma from Gurudwara Sheeshganj in the afternoon itself and then was brought in a Wagon R to Laxmi Nagar in a police vehicle and at the said spot, accused Jagdeo was FIR No. 18/07 PS Special Cell Page 28 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
also put into the same vehicle with him. As per the statement given by this accused u/s 313 Cr.PC, it was at about 02.30 in the afternoon of 23.03.2007 that SI Ramesh Sharma had come to Gurudwara Sheeshganj and at that time he (the accused) was standing alongwith one Gurlal, another Sewadar in Gurudwara Sheeshganj and SI Ramesh had very politely requested him to come alongwith him to the office of Special Cell, Rohini for some enquiry and that the accused then gave Gurlal, the key of his motorcycle bearing no. DL 7SAZ 2142 (the same motorcycle on which the accused persons are shown to have been apprehended by the police) and asked Gurlal to park the said motorcycle in the parking lot of the museum opposite the Gurudwara and he then accompanied SI Ramesh in the Wagon R car. In support of this version, the accused has produced one Pargat Singh in the witness box who has inter alia deposed that on 23.03.2007 at about 02.30 PM, he alongwith accused Gurdeep and another Sewadar Gurlal were standing at the STD booth near Gurudwara when a person came and told Gurdeep "sahab bula rahe hain"
and took Gurdeep alongwith him. He has also inter alia deposed that before going, Gurdeep told Gurlal that his bike is parked in front of the museum opposite the Gurudwara and that Gurlal should bring the bike inside the Gurudwara premises and park it. Further according to the defence, the said motorcycle was then forcibly picked up by the police FIR No. 18/07 PS Special Cell Page 29 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
from the parking lot of the Gurudwara and since they could not obtain the key of the said motorcycle as the same in the meantime had been handed over to the father of accused Gurdeep by Gurlal, the prosecution was unable to produce the said key before this court.
42.Now though the aforementioned defence put forward by the accused Gurdeep, in the first instance may appear to be probable, keeping in view that the prosecution was unable to produce the key in question (as per the deposition of IO SI Upendra Solanki, accused Gurdeep had thrown away the key after his apprehension and the raiding team members could not trace out the same), this court is not at all inclined to accept the same for as per the judicial record, the accused Gurdeep had filed an application dated 07.06.2007 before one of the Ld. Predecessors of this court, before whom he was produced during remand proceedings and in the said application this accused has given a completely different version with respect to his apprehension. In the said application (which for the purposes of identification has been given mark R1 by the court) the accused Gurdeep had inter alia taken a stand that on 23.03.2007 it was about 0606.30 PM that while he was standing with his friend near a STD booth at Gurudwara Sheeshganj, that SI Ramesh Sharma had come and asked him to accompany him to his office for some enquiry and that thereafter this accused followed SI Sharma's vehicle on his own FIR No. 18/07 PS Special Cell Page 30 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
motorcycle and that it is only after he and the vehicle of SI Ramesh Sharma had passed Lal Quila red light signal that SI Sharma told him to leave his bike and accompany him in his vehicle as in the meantime, SI Ramesh Sharma had received a telephone call that he must reach very quickly to the office as the senior officer who was to do the enquiry from the accused is leaving the office and will thereafter come back at only 09.00 PM and that SI Sharma did not want that accused Gurdeep must spoil his whole night and that therefore Gurdeep sat in the vehicle alongwith SI Sharma and his bike was thereafter driven by a police official. thus as per the stand taken by accused Gurdeep inthis application, he was picked up in the evening (and not in the afternoon) and that his motorcycle was not picked up by the police from the parking lot but that he had himself driven the said motorcycle till Laxmi Nagar. This application was brought to the notice of Ld. Defence counsel Sh. S.S. Das during the course of final arguments and it was also shown to the accused Gurdeep Singh and both of them admitted that the same bears the signatures of accused Gurdeep and according to them the said application was written by somebody in the jail on the instructions of accused Gurdeep.
43.In the considered opinion of this court, the version contained in this application which was filed by accused Gurdeep about three months after FIR No. 18/07 PS Special Cell Page 31 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
his arrest being completely inconsistent with the version given by him at the stage of section 313 Cr.PC shows that he has been falsely contending that his motorcycle was forcibly taken by the police officials from the parking lot of the Gurudwara without its key. Similarly SI Harbir Singh in his crossexamination has categorically denied that he knows any police official by the name of SI Ombir Singh and therefore the bald allegation in this regard by accused Jagdeo, without bringing any material whatsoever on record, cannot be made a ground to doubt the version of the prosecution. On the other hand, the intercepted mobile conversations proved on record by the prosecution completely corroborates the version put forward by the prosecution with respect to the manner of apprehension of the accused persons. As per the evidence led on record, four mobiles bearing no. 9876933745, 9317534945, 9811328172 and 9871060613 were under surveillance of the Special Cell and mobile numbers 9999579926 and 9871060613 were recovered from Gurdeep Singh, 9811328172 and 9873836607 were recovered from Jagdeo Singh and mobile numbers 9876933745 and 9317534945 were recovered from accused Sukhwinder. As per the intercepted mobile conversations proved on record, both accused Jagdeo and Gurdeep were known to each other much before 23.03.2007 and they were together involved in some business. To understand the context of the said FIR No. 18/07 PS Special Cell Page 32 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
conversations, it will be relevant herein to reproduce the transcripts of two of the conversations that both these accused persons had with each other a few days before their apprehension in this case (the conversations that have been heard in the court during trial were in Punjabi and the transcripts thereof both in Punjabi and Hindi were filed on record by the IO SI Upendra Solanki and were verified by this court and the defence counsels to be containing the correct account of the conversations heard): (Call No. 77643, Target No. 9871060613, Start Time 17.03.2007 at 21:23:40) Unknown: Hello Gurdeep: Kaha ho Unknown: Ji idhar khade hain red light ke paas Gurdeep: Doctor ko phone do Jagdeo: Haan ji.
Gurdeep: Kaha khade ho
Jagdeo: Juice wale ke paas...Nahi idhar idhar hi khade hain
Gurdeep: Juice wale ke paas aa jao
Jagdeo: Thik hai, U turn lekar aa rahe hain
Gurdeep: Juice wale ke paas aa jao waha wo banda mileega...
Jagdeo: Lifafa le lu
Gurdeep: Haan le lo...maharaj le lo..Passport lena hai, party
kharab ho jayegi, maza nahi ayega, tum yah
pakdo..baat to suno.
Jagdeo: Is tarah maza nahi ata
Gurdeep: Maza to nahi ata lekin majbur hote hain is time
Jagdeo: Majbur to hum bhi hain
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Gurdeep: Ye tum pakdo mai nahi aa raha bahar waha hi milega
Jagdeo: Aur suna
Gurdeep: Bas thik hai badhiya.....
(Call No. 80096, Target No. 9871060613, Start time 19.03.2007 at 15:28:20) Gurdeep: Hello Sat Sri Akal Jagdeo: Achha apne pehle wale munde ka kaam ho gaya jise 2 baje ka time diya tha.
Gurdeep: Yaar sath to mai baitha hu mai Jagdeo: Usi ke sath baithe hain Gurdeep: Haan aur kya keh raha hu Jagdeo: Kidhar ana hai..juice wale ki dukan ki taraf Gurdeep: Yaar jaha kal aye the Jagdeo: Jaha kal mile the banda nikal gaya tha.....
44.Then again the intercepted mobile conversations also reflect that both accused Jagdeo and Gurdeep were in continuous touch with each other on 23.03.2007 i.e. the date of their apprehension, right from 04.45 in the afternoon till about 07.30 PM when they finally met each other. As per the said mobile conversations which were also played in the court during trial and whose transcripts have also been filed on judicial record, at about 04.44 PM Jagdeo had called up Gurdeep and both of them had decided to meet near a tea vendor's shop. The transcript of the said conversation runs as follows:
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(Call No. 86613, Target No. 9871060613, Start Time 23.03.2007 at 16:44:37) Jagdeo: Hello..Sat Shri Akal.
Gurdeep: Sat Shri Akal.
Jagdeo: Bhai kya haal hain.
Gurdeep: Bas burey haal hain
Jagdeo: Kyu kya ho raha hai
Gurdeep: Pura pura tumhara khyal hai...6 murge khane hain
humko 6 ek sath 6 murge.
Jagdeo: Achha ji.
Gurdeep: 6 murge banaye hain, 6 baje ana hai, sadhe 6 baje
aa jaio.
Jagdeo: Achha
Gurdeep: Thik hai
Jagdeo: Chai wali dukan pe
Gurdeep: Hain
Jagdeo: Chai wale pe
Gurdeep: Achha thik hai
Jagdeo: Chai wale pe ana
Gurdeep: Achha
Jagdeo: Thik hai
45.After the aforementioned conversation, again at about 05.13 PM, accused Gurdeep had called up Jagdeo and had asked him where he had reached (the said call is no. 86695) and accused Jagdeo had informed him that he is travelling in a Scorpio vehicle and will reach at the designated spot by 07.00 PM. Thereafter, at about 07.05 PM (call no. 86841), accused Jagdeo again called up Gurdeep and told him that he has got stuck up in FIR No. 18/07 PS Special Cell Page 35 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
a traffic jam and that he is at Ashram and that in case the jam is cleared, he will reach within 1015 minutes and in turn Gurdeep tells him that in case he fails to come by 07.30 PM, he will not wait for him. Thereafter, accused Gurdeep made another call (call no. 86878) and the person on the other end informed him that the vehicle had got punctured and that 'bhai sahab' (referring to Jagdeo) would be reaching the spot soon as he had taken a lift in another vehicle. Thereafter at about 07.35 PM there was again a conversation between accused Jagdeo and Gurdeep and at this point of time, Jagdeo informed Gurdeep that he has been able to reach the designated spot by taking a lift and asks him to specify where he (Gurdeep) is standing and further tells him that he himself is standing near a banana vendor. Two minutes thereafter, accused Gurdeep made a call to a person whom he addresses as Raju and tells him that Jagdeo has met him and that the said person Raju should be able to spot him and tries to tell him where Jagdeo is presently standing. Three minutes after, accused Gurdeep again gave a call to the said person Raju and while talking midway screams and tells him to run away ("oye bhaj bhaj jaa"). The said conversations (transcripts of which are on record and have not been reproduced only for the sake of brevity) make it amply clear that both the accused persons had not been intercepted by the police before 07.41 PM on 23.03.2007, that both of them knew each other very well FIR No. 18/07 PS Special Cell Page 36 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
and were involved together in some clandestine activity and that both of them on 23.03.2007 had met at a place beyond the Ashram after 07.30 PM and that therefore they have taken a patently false defence before this court.
46.Further in the considered opinion of this court, the intercepted mobile conversations produced by the prosecution, is evidence of such unimpeachable quality that it cannot be doubted merely on the ground that the said evidence was produced belatedly by the prosecution, more so when the prosecution has been able to give an explanation for the said delay. PW1 SI Harbir Singh in his deposition has stated that after the bomb blasts that had taken place in the year 2005 at Satyam and Liberty Cinema, the mobile phones of the suspects therein were kept under observation and he was deputed to listen to the conversations being made from the said phones and that it was during the said surveillance he had come across the number 9876933745, being used by accused Sukhwinder and that this accused was found to be in touch with terrorists of Khalistan Liberation Force (KLF) and that in this regard on 19.12.2007 one FIR No. 77/07 (admittedly u/s 120A and 120B of IPC and under the provisions of Unlawful Activities (Prevention) Act) was got registered in Special Cell and accused Sukhwinder Singh was arrested in the said FIR (admittedly on 26.02.2008). As per the deposition of this witness the fact FIR No. 18/07 PS Special Cell Page 37 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
of surveillance of the mobile phones of the various persons involved in terrorist activities was to be kept very secret on the instructions of senior officials. He has further deposed that during the surveillance of the mobile phone of accused Sukhwinder, it also came to his knowledge that accused Sukhwinder was also found involved in the supply of fake currency, drugs, arms and ammunitions and that he was in touch with accused Jagdeo and Gurdeep and used to supply the same to them in Delhi for further sale and that he (SI Harbir) had relayed only the said fact of the activities of Jagdeo and Gurdeep in Delhi to Inspector Anil Dureja and that the said Inspector had thereafter developed on his own further information with respect to the activities of Jagdeo and Gurdeep. He has further deposed that it is only when on 02.04.2008 he was given permission, he handed over in a pen drive to SI Upendra Solanki, the intercepted mobile conversations pertaining to the accused persons in this case. It is on the basis of the said deposition that Ld. APP Sh. Rajiv Mohan has submitted that since the senior officials investigating the FIR no. 77/07 had taken a conscious decision that the intercepted calls will not be made public till the entire network of the terrorists is exposed in the said FIR, that the intercepted mobile phone conversations between the accused persons in the present case were not placed on record initially alongwith the main chargesheet. In the considered opinion of FIR No. 18/07 PS Special Cell Page 38 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
this court, the deposition of SI Harbir Singh and the submissions made by Ld. APP Sh. Mohan do indicate that the investigating agency did not have any malafide intentions in not placing on record the intercepted mobile conversations alongwith the main chargesheet. Further, the nature of the said evidence (i.e. of intercepted mobile conversations) is such that this Court has no doubt about its authenticity and its veracity. Admittedly the mobile conversations between the accused persons were intercepted in the computer system installed in the office of Special Cell, NR through the server of the service provider i.e the mobile companies and the technology used in the said procedure is not capable of being manipulated in the manner being alleged by the defence. The depositions of PW1 SI Harbir Singh, PW17 Inspector Upendra Solanki and PW30 Sandeep Malhotra inter alia reveal that four mobiles bearing no. 9876933745, 931753495, 9811328712 and 9871060613 were under surveillance of the Special Cell much before the apprehension of the accused persons Gurdeep and Jagdeo and the telephonic conversations that took place using the said mobiles were automatically saved, at the same time that the calls were made, in the server of the Special Cell through the server of the mobile service provider company and the said telephonic conversations were copied on 02.04.2008 by SI Harbir Singh on the instructions of ACP Ravi Shankar firstly from the computer FIR No. 18/07 PS Special Cell Page 39 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
system in a pen drive and then in a DVD which has been exhibited during trial as Ex.P26. As per the deposition of PW17 Inspector Upendra Solanki after listening to all the calls in the said DVD he then copied the relevant calls in CDs which have been exhibited during trial as Ex.P29, Ex.P36 and Ex.P38. The depositions of the aforementioned witnesses also make it clear that the aforementioned CDs are admissible in evidence for the statements given by the aforementioned witnesses clearly reveal that conditions laid down by section 65B of the Evidence Act, in the context of computer generated evidence, have been complied with. The aforementioned witnesses have clearly deposed that the computer system installed in the office of Special Cell, NR Rohini was under the supervision and control of PW30 Inspector Sandeep Malhotra and that the password of the computer monitor system used to remain with him and that during the relevant period there was no problem in the operation of the computer system nor was there a break down and that the CDs in question contained the calls that were initially stored in the server of the computer system installed in the office of Special Cell, NR, Rohini. In the judgment pronounced in the case titled as State Vs. Mohd. Afzal and Ors. 107 (2003) DLT 491, the Hon'ble Delhi High Court in paras 271293 of the said judgment, after referring to the provisions of Section 65B of the Indian Evidence Act and to the various FIR No. 18/07 PS Special Cell Page 40 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
authorities of English law held that in the context of section 65B of the Indian Evidence Act, the only condition that should be insisted to be complied with, before admitting computer generated evidence, is that throughout the material part of the period to which the computer operations related, the computer was operating properly. The Hon'ble Court has observed specifically in para 293 of its judgment that this is the only practical way to deal with computer generated evidence, unless the response is by way of a challenge to the accuracy of computer evidence on the ground of misuse of system or operating failure or interpolation. It has been further made clear by the Hon'ble Court that such challenge has to be established by the challenger and that generic and theoretical doubts by way of smokescreen have to be ignored.
47. Now in the present case, the authenticity of the aforementioned CDs in question,is being questioned on behalf of the defence by inter alia contending that the hard disk of the original computer system from which the intercepted calls were copied was not seized and that since the mobile phones allegedly recovered from the accused persons were not sealed and deposited in the Malkhana, the data in those mobile phones was tampered and manipulated with and thereafter copied in the CDs and produced in the Court. The contention of Defence counsel Sh. R.S. Rana in particular is that the investigating agency first found a person FIR No. 18/07 PS Special Cell Page 41 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
who could mimic the voice of the accused persons and then using the phones already in the possession of the investigating officials recorded the alleged conversations after the date of arrest of the accused persons and then copied the same in a CD and produced in the Court and that infact the conversations heard by the court are not in the voices of the accused..
48.I am afraid that the said contention of the defence has no merits whatsoever, for firstly in terms of the provisions of Section 65B of the Evidence Act, the prosecution was not required to seize the hard disk of the computer system where the calls were firstly automatically intercepted and secondly the fact that the mobiles recovered from the accused persons remained in the custody of the investigating officials is irrelevant for the mobile conversations do not remain stored in the physical mobile instrument sets but in fact is stored and can be accessed from the server of the mobile service provider company only. There is no technology vide which the investigating official could have used the mobile phone instruments to show antedated conversations/calls taking place therefrom. Further, the intercepted mobile conversations could not have been made after the arrest of the accused persons as contended, since the call related information that is the date and the time during which the calls were made, are as per the prevalent technology FIR No. 18/07 PS Special Cell Page 42 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
automatically recorded at the time at which the said calls are made in the server of the mobile service provider company and thereafter transferred to the server of the Special Cell using a software application and could not have been tampered with for no manual intervention in this regard is scientifically possible. When the CDs in question were played in Court the call related information was reflected on the computer screen along with the graphs of the voice patterns and the said details show that the calls in question were made during the period February, 2007 and March, 2007 i.e. before the arrest of the accused persons. Moreover, the call detail records of the mobiles in question proved on record by the officials of the mobile service provider companies, completely tally with the timings of the calls shown in the CDs in question. To illustrate, Ex 15/A, the CDR of mobile no 9873836607 (the mobile recovered from accused Jagdeo) proved on record by PW 15, nodal officer of Vodafone, reveals that on 23.3.2007, a call was made at 4:45 p.m. from this number to the mobile no 9871060613 (the mobile recovered from accused, Gurdeep). Now the intercepted mobile conversations that took place between accused Gurdeep no. 9871060613 (which was under
surveillance ) and Jagdeo on 23.3.2007 proved on record also contain a conversation (call no 86613) at the said very time. Similarly, the other intercepted conversations proved on record to have taken place between FIR No. 18/07 PS Special Cell Page 43 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
accused Jagdeo and Gurdeep also tally with the aforementioned CDRs. In fact, the cell ID chart of 9873836607, proved on record on behalf of the defence itself, also corroborates the intercepted mobile conversations that took place between the accused Jagdeo and Gurdeep on 23.3.2007.The accused Jagdeo on his own had summoned a witness from the Vodafone Mobile Services Ltd. and the said witness has been examined as DW4. The said witness had been summoned by the accused to produce on record apart from the call detail records of the telephone numbers 9811328172 and 9873836607, the Cell ID Chart of the said two numbers i.e. the chart pertaining to the actual location of the aforementioned mobile phones during the period 01.02.2007 to 23.03.2007. On questions put to him by the Ld. Defence counsel himself this witness after verifying from the said chart has deposed that at 17:58:44 an outgoing call from mobile number 9873836607 which lasted for about 61 seconds and that the location of this mobile at the said time was Delhi Cantt. According to the deposition of this witness and the records produced by him, the mobile remained within the same mobile tower at Delhi Cantt. till about 18:18:15 and that thereafter at about 19:06:18 one outgoing call was made for about 50 seconds and at the said time, the mobile tower within whose reach the call had been made was at Lajpat Nagar PartII and thereafter at about 19:32:15 an outgoing call FIR No. 18/07 PS Special Cell Page 44 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
was made for 29 seconds from the cell tower of Sarai Kale Khan and at about 19:32:47, an incoming call was received for 16 seconds from the Cell ID Tower of Bhairo Marg, Pragati Maidan. Now the said deposition and the records produced by this witness are being relied upon by Ld. Defence counsel Sh. Arvind for accused Jagdeo to contend that at 1932 hours the accused was within the area of Bhairo Marg, Pragati Maidan and not at Ganesh Nagar as sought to be shown by the investigating agency. The said Ld. Counsel has also contended that as per the mobile transcripts placed on record by the prosecution, accused Jagdeo and Gurdeep are shown to have a mobile conversation at about 1941 which also is contrary to the stand of the prosecution about the apprehension of the accused persons at 1930. With respect to the said contention, Ld. APP Sh. Rajiv Mohan has submitted that all the members of the raiding team have consistently deposed that the time of the apprehension of the accused persons was about 1930 and that the said deposition cannot be read to mean that it was exactly at 1930 hours that the accused persons were arrested and that the prosecution has never taken this stand. He further points out that a cell tower catches the frequency of a mobile phone if the location of the said mobile is within 12 KM thereof and that therefore there is no discrepancy if the cell tower at Pragati Maidan was able to catch the frequency of the mobile being used by Jagdeo FIR No. 18/07 PS Special Cell Page 45 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
while he was near Ganesh Nagar for the said spot is within 2 KM of Pragati Maidan. This court is also of the considered opinion that the contentions made by the Ld. Counsel Sh. Arvind do not have any merit and infact on the other hand the cell ID chart being relied upon by him perfectly corroborates the intercepted mobile conversations proved on record to have taken place between the accused persons. To illustrate as per the cell ID chart, the location of the mobile number 9873836607 (being used by accused Jagdeo) at 19:06 hrs was in an area which fell within the reach of the mobile tower at Lajpat Nagar Part II. Now, as per the intercepted mobile call 86841, at the said time accused Jagdeo had made a call to accused Gurdeep and had informed him that he has got stuck at a traffic jam at Ashram a place which would be within the reach of the mobile tower at Lajpat Nagar Part II. Further, the contention by Ld. Counsel Sh. Arvind that the mobile phone transcripts placed on record show a conversation between accused Gurdeep and Jagdeo at about 07.41 is incorrect, for the transcript being referred by him is of the mobile conversation that took place between accused Gurdeep and one person, whom Gurdeep addressed as Raju.
49.In view of the discussion hereinabove, this court is of the considered opinion that the challenge made by the Defence to the admissibility of intercepted mobile conversations proved on record, has no merit. FIR No. 18/07 PS Special Cell Page 46 of 89
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50.As regards the denial of the accused persons that the voice in the intercepted mobile conversations does not belong to them, it is very relevant to mention herein that the voice sample of accused Sukhwinder and the intercepted mobile conversations were sent to CFSL for comparison and PW28 Dr. Rajender Singh, Principal Scientific Officer and Head of Physics and Forensic Voice Identification Unit, CFSL, CBI has inter alia deposed before this court that he has more than more than 23 years experience in the field of Forensic Voice Identification and during the said period he has examined more than 1000 cases involving more than 4000 person's voices and that as per his analysis in this case, the questioned voice of Sukhwinder Singh in conversations Ex.Q1(I)(A) to Ex.Q1(V)(A) was found tallying with the specimen voice of Sukhwinder Singh. The report prepared by this expert Ex.PW28/A clearly mentions that by using auditory and voice spectographic techniques he has been able to conclude that the questioned voice of Sukhwinder Singh tallies with his specimen voice in respect of his linguistic, phonetics and other general spectographic parameters. In his crossexamination this witness has stated that the science of voice identification is 99% accurate and reliable and he denied the suggestion that he had given an incorrect report at the instance of the Delhi Police officials. In the considered opinion of this court, the detailed report FIR No. 18/07 PS Special Cell Page 47 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
tendered by this expert leaves no doubt in the mind of this court that the said report is not tutored and infact has been given by an expert whose credibility cannot be doubted on the bald allegation of the Ld. Counsel Sh. Rana that the said witness has given an incorrect report at the behest of the IO. Moreover, this court also had the occasion to hear Sukhwinder speaking in the court when he tendered his statement u/s 313 Cr.PC and it is to be observed that not only the voice of accused Sukhwinder but that of accused Gurdeep and Jagdeo is identical to the voice in the intercepted mobile conversations which were heard during trial. It will also be relevant to mention herein that both accused Jagdeo and Gurdeep had refused to give their specimen voice samples despite the fact that an expert from CFSL, Chandigarh had come all the way to the court to record their voice samples so as to ally their apprehensions that if the court allows their voice samples to be recorded by the Delhi Special Cell Police officials in a lab in Delhi, the said voice samples will be tampered with. It is a matter of record that when the investigating agency had filed an application to get the voice samples of accused Jagdeo and Gurdeep recorded, the said two accused persons had informed the Ld. Predecessor of this court that they apprehend that their voice samples will be tampered with, because according to them the signatures of accused Jagdeo had been forged by the investigating FIR No. 18/07 PS Special Cell Page 48 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
officials and keeping in view their apprehension, in interests of justice, it was directed by the Ld. Predecessor that the accused persons be taken to CFSL Chandigarh for the recording of their voice samples. However when subsequently the Chandigarh authorities informed the IO that they will not be in a position to provide security arrangements for the accused persons, the CFSL expert from Chandigarh, Sh. S.K. Jain, Deputy Director, CFSL Chandigarh had appeared in court on 12.01.2009 to record the voice samples of the accused persons Jagdeo and Gurdeep but on the said date the accused persons refused to give their voice samples. The Ld. Predecessor of this court informed them that an adverse inference will be drawn against them in view of their refusal but they still insisted in not giving their voice samples. In the considered opinion of this court, the said refusal on the part of the accused persons Jagdeo and Gurdeep does lead to an inference that they were aware that if the intercepted mobile conversations will be compared with their specimen voice samples, it will be proved that the intercepted mobile conversations had been made by them only. The contention of Ld. Defence counsel Sh. S.S. Das and Sh. Arvind that since the investigating officials had forged the signatures of accused Jagdeo on various documents they rightly refused to give their voice samples is absolutely without any merit firstly because the evidence on record does not prove any such forgery asserted FIR No. 18/07 PS Special Cell Page 49 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
by the defence (the said evidence will be discussed herein a little later in the judgment) and secondly to ally the apprehensions of the accused persons an expert had come all the way from Chandigarh and that therefore the accused persons did not have any genuine reason to refuse to give their specimen voice samples. At this stage it will also be relevant herein to point out that accused Jagdeo had infact taken a stand during his statement u/s 313 Cr.PC that the said expert Sh. Jain had never appeared for taking his voice sample and that he has stating the said fact on the basis of the information that he had obtained in this regard under the RTI Act from CFSL Chandigarh. The said plea of the accused also appears to be without any merit for the ordersheet of 12.01.2009 of the Ld. Predecessor of this court clearly records that Dr. S.K. Jain, Assistant Director CFSL from Chandigarh was present in the court on the said date, when both the accused persons Jagdeo and Gurdeep were produced from custody. The said ordersheet also records the presence of Ld. Counsel Sh. S.S. Das for the accused persons and the Ld. Defence counsel during the course of final arguments has fairly not disputed the said fact. He however has only contended that the accused Jagdeo had suspicions about the identity of the person who had appeared in the court on 12.01.2009 and that he on his own had sought information under the RTI Act from CFSL Chandigarh and that they had informed him that no FIR No. 18/07 PS Special Cell Page 50 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
official from their department had appeared in the court of Ld. ASJ Sh. Sanjeev Jain (Ld. Predecessor of this court) on 12.01.2009. With respect to the said RTI reply, Dr. S.K. Jain (DW3) on being summoned by the accused Jagdeo during defence evidence, has clarified in his deposition that the accused had sent two applications to CFSL Chandigarh to CFSL Chandigarh one of them was received on 15.11.2011 and the other on 09.03.2012 and that in the first application he had merely enquired whether any official from the CFSL, Chandigarh had appeared in the court of Ld. Special Judge, NDPS on 12.01.2009 while in his second application he had specifically asked whether S.K. Jain i.e. himself, had appeared in the court on the said date. The said witness has further stated that though inadvertently in the reply Ex.PW3/B to the first application of accused Jagdeo it was stated that no officer from CFSL Chandigarh had attended the court, in reply to the second application, Ex.DW3/C it was categorically mentioned that Dr. S.K. Jain had attended the court on 12.01.2009. This witness has also further explained that in the first reply, incorrect information had been given because the information sought by the accused was vague and further that no information was sought from him (Dr. S.K. Jain) by the PIO, CFSL Chandigarh but that when the second application from the accused was received, information was sought from him by the PIO and he had duly informed them about his FIR No. 18/07 PS Special Cell Page 51 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
presence in the court on 12.01.2009. The deposition of this witness and the ordersheet dated 12.01.2009 leaves no doubt about his presence in the court on 12.01.2009 on his own and in the considered opinion of this court, it appears that the accused Jagdeo is resorting to such pleas only to somehow shake the credibility of the investigating agency.
51. At this stage it will be also relevant to consider another contention made by the Ld. Defence counsels with respect to the intercepted mobile conversations and the same is that since the investigating agency has not been able to prove that the accused persons were the subscribers of the mobile phones in question, this court cannot accept that the said mobile phones were used by the accused persons only. I am afraid even the said contention of the Ld. Defence counsels cannot be accepted for the mobile records produced by PW9 R.K. Singh shows that the mobile no. 9876933745 (one of the mobile numbers of Sukhwinder under surveillance) was subscribed in the name of this accused himself. Further the said mobile phone and the mobile phone bearing no. 9317534945 were recovered from accused Sukhwinder only. Similarly, as regards the other two accused persons Jagdeo and Gurdeep, the mobile phone bearing numbers 9871060613 and 9999579926 were recovered from accused Gurdeep and the mobiles bearing number 9811328172 and 9873836607 were recovered from accused Jagdeo and the said recovery FIR No. 18/07 PS Special Cell Page 52 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
was done at the time of apprehension of these two accused persons. It is a matter of record that though the accused Jagdeo and Gurdeep right from the date that they had been supplied copy of the chargesheet and documents had been taking a plea that no contraband had been recovered from them, they never took a plea that no mobiles had been recovered from them, though the copy of the recovery memos were duly supplied to them alongwith the chargesheet. It is only after the intercepted mobile conversations were placed on record by the prosecution and the same was heavily relied upon by the prosecution in support of its case, have these two accused persons chosen to take a plea that the said mobiles were not recovered from their possession. Further admittedly the intercepted mobile conversations in question were not at all in the possession of the investigating officer PW17 Upendra Solanki, on the date of the apprehension of accused Jagdeo and Gurdeep and neither was he aware of the same and therefore at that stage there would have been no occasion for him to have planted the said mobiles on accused Gurdeep and Jagdeo. In Mohd. Afsal's case (supra) also a similar contention was taken before the Hon'ble Delhi High Court but the same was negated by holding that since the recovery memos prepared at the spot clearly mention the recovery of the said mobiles, there was no reason to doubt the recovery of mobile phones.
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52.The other main ground on which the version of the prosecution is being challenged by the defence is with respect to the documentary evidence prepared at the spot, namely the notice prepared under section 50 NDPS Act, the seizure memo, recovery memo, inspection memo etc. It is the contention of the Defence that when the accused Jagdeo refused to sign the aforementioned documents despite being beaten by the investigating officials, his signatures were forged by the investigating officials on the documents namely seizure memo, recovery memo, inspection memo etc. and that is the reason that CW1 T.K.Joshi, the handwriting expert has opined that the purported signatures on the said documents do not appear to tally with the specimen signatures of Jagdeo. Ld. Defence counsels have also pointed out that the medical reports prepared by the doctors incharge at the Tihar Jail, at the time of admission of the accused persons Jagdeo and Gurdeep in Tihar Jail, clearly show that the said doctors on medically examining both the said accused persons had found injuries on their body and had recorded that both the accused persons had informed them that they had been beaten up by the police officials. According to the Ld. Defence counsels, the report of the handwriting expert and the said doctors cumulatively taken together prove that the documents been relied upon by the investigating agency are manipulated and fabricated. FIR No. 18/07 PS Special Cell Page 54 of 89
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53.In rebuttal to the aforementioned contention of the defence, the Ld. APPs for the State, Sh. Gurjar and Sh. Rajiv Mohan have submitted that it cannot be concluded on the basis of the report of the handwriting expert that the signatures of accused Jagdeo have been forged on the aforementioned documents. Ld. APPs have pointed out that accused Jagdeo is a history sheeter and has been involved in many cases of dacoity and murder and that he very cunningly had deliberately put his signatures on the aforementioned documents in a different manner than his usual handwriting. It is the contention of Ld. APPs that the accused Jagdeo deliberately put greater pressure while signing the aforementioned documents, so that he could later concoct a defence that the said signatures were not his and that the deposition and report of the expert neither confirms nor rules out the possibility that the accused may have deliberately put greater pressure while signing the documents. As regards the medical reports, the submission of Ld. APP Sh. Rajiv Mohan is that the accused persons had not complained about having received any injuries at the hands of the investigating officers, either to the doctors who had medically examined them after their arrest or to the Ld. Judge who had granted police custody of seven days of these accused persons to the investigating officials, when the said accused persons had been produced before the Ld. Judge for the first time after their arrest on FIR No. 18/07 PS Special Cell Page 55 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
24.03.2007. His submission is that the Ld. Judge had granted police custody of the accused persons only after being satisfied about the necessity and the desirability of the same. He has however fairly submitted that the medical reports of the Tihar Jail doctors do indicate that the accused persons were given beatings during the police custody by some police officials, but his submission is that though the said illegal action of the police officials warrants strict action against them, the same cannot be made a ground to doubt the veracity of the documents in question for the said documents were not prepared during the police custody but were prepared at the time of the apprehension of the accused persons and were placed before the Ld. Judge at the time of seeking police custody.
54.After carefully considering the submissions made by both the Ld. Counsels and after going through the material on record, this court is of the considered opinion that the veracity of the documents in question cannot be held to be doubtful. Admittedly as per record, accused Jagdeo had filed an application before one of the Ld. Predecessors of this court that the purported signatures on the documents allegedly prepared by the investigating officials be sent to handwriting expert and pursuant to the said application, the specimen signatures of this accused and his purported signatures appearing on the documents filed by the FIR No. 18/07 PS Special Cell Page 56 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
investigating agency namely recovery memo, arrest memo, seizure memos, disclosure statements, inspections memo, etc were sent to CFSL, Chandigarh and as per the report of Sh. T. Joshi, the expert in the GEQD office of Chandigarh, all the characteristic features occurring in the questioned handwriting could not be collectively and similarly accounted for from the standard writing and that therefore the authorship of the questioned documents could not be linked with the specimen handwriting of accused Jagdeo. Based on the report of the said expert, admittedly as per record, the accused had filed an application seeking bail and before deciding the said application, the Ld. Predecessor of this court had thought it fit to summon the said handwriting expert as a court witness and he was examined as CW1. The said expert witness was crossexamined at length by the Ld. Defence counsel as well as by the Ld. APP and during the said crossexamination, he has deposed that the strokes, curvatures, alignment and other parameters are different in the questioned and specimen writings and that therefore the authorship of the questioned documents could not be linked. Further on a question put by the Ld. Defence counsel himself as to why more material was not called from the investigating agency so as to reach a conclusive opinion the said expert categorically deposed that there was greater pressure observed in the questioned writing which was not existing in the standard FIR No. 18/07 PS Special Cell Page 57 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
writing and the absence of the said parameter could not have been satisfied even by asking for more material. Based on the said deposition, the Ld. Predecessor of this court had denied to grant bail to the accused and had inter alia observed that as per the handwriting expert the difference in the questioned writing and the standard writing was the pressure used by the author in the two handwritings and that therefore it cannot be concluded that the signatures of accused Jagdeo had been forged, more so when the police officials would not have the reasons to forge his signatures, the accused himself being in their custody. As per record the accused had also filed an application seeking bail on the same very report before the Hon'ble Delhi High Court but apparently the said application was also withdrawn by the Ld. Defence counsel Sh. S.S. Das. Though this court agrees with Ld. Defence counsel that the dismissal of the said applications is not a ground for this court to hold that the purported signatures on the questioned documents are that of the accused only, it is to be taken note of that as per the handwriting expert, CW1, the difference in the questioned writing and the standard writing was due to the different pressure used by the authors thereof and therefore it also cannot be concluded that the signatures on the questioned documents had been forged by the investigating officials. It definitely does not stand to reason that an investigating officer seeking to forge the signatures of FIR No. 18/07 PS Special Cell Page 58 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
accused Jagdeo would instead of making an effort to copy his signatures in a fluent manner, would deliberately make his signatures with great pressure. There is also another circumstance on record that creates a grave doubt on the contention been taken on behalf of accused Jagdeo with respect to his signatures and the said is namely the fact that this accused without any provocation whatsoever, did destroy the original notice issued to him u/s 50 NDPS Act and filed on record by the investigating agency. Admittedly as per record, both accused Jagdeo and Gurdeep had filed applications before one of the Ld. Predecessors of this court for return of their jamatalashi articles and pursuant to the said applications being allowed vide order dated 12.03.2008, the concerned MHCM officials also handed over the section 50 original notice to both the accused persons while returning their jamatalashi articles and immediately on receiving the said notices in original, the accused persons tore them off. When the said fact was brought to the attention of the Ld. Predecessor, the statements of the accused persons were recorded in court on 15.03.2008 wherein they admitted the fact of having received the said original notice alongwith their jamatalashi articles and the fact that they had destroyed the same. The said conduct of the accused persons clearly show that their intention was to destroy an important piece of evidence which apart from the signatures of accused Jagdeo FIR No. 18/07 PS Special Cell Page 59 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
contained in his purported handwriting 23 lines recording his refusal to be searched before a Magistrate or a Gazetted Officer and the said handwriting could have shed more light on the issue of his denial of having put any signatures on the documents prepared at the spot.
55.In view of the aforementioned discussion, this court is of the considered opinion that neither the defence taken by the accused persons in section 313 Cr.PC nor the report of the handwriting expert in question have been able to raise any doubts with respect to the version put forward by the investigating agency regarding the apprehension of accused Jagdeo and Gurdeep and on the other hand the intercepted mobile conversations proved on record completely corroborate the said version. No doubt the illegal act of the police officials in giving beatings to the accused persons after obtaining their police custody, warrants that strict action should be taken against the said erring police officials, but the said illegality, in the considered opinion of this court, in the facts and circumstances of the present case do not warrant that the documents that were prepared at the time of the apprehension of the accused persons and placed before the Ld. Judge from whom police custody was sought, should be doubted or that the case of the prosecution should be thrown out on the ground of this illegality.
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56.Apart from the aforementioned main challenges to the case put forward by the prosecution, lengthy written submissions have been filed on behalf of accused Gurdeep by Ld. Defence counsel Sh. S.S. Das wherein various contradictions/lacuane in the case put forward by the prosecution have been pointed out. This court has considered each of the said contradictions pointed out by the Ld. Defence counsel Sh. Das but in the considered opinion of this court, none of them can be stated to be of such major significance that goes to the root of the matter. It is to be borne in mind that the incident in question had taken place almost six years back and therefore it is not surprising that some of the police officials/prosecution witnesses could not depose correctly about some details of the raid. Though Ld. Defence counsel Sh. S.S. Das has pointed out that both PW16 and PW1 have deposed incorrectly with respect to the colour of the motorcycle in as much as PW16 Inspector Anil Dureja has deposed that the said colour was red and PW1 SI Harbir Singh has deposed that the colour of the said motorcycle was blue, while factually the motorcycle in question was black in colour, in the considered opinion of this court, the said incorrect depositions made by the witness have not to be given undue significance the contemporary document i.e. the recovery memo clearly mentions the colour of the motorcycle in question as black and it is not expected that all the prosecution witnesses must FIR No. 18/07 PS Special Cell Page 61 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
have a photographic memory to remember all such minute details during the investigation. Further the contention that the prosecution witnesses could not tell the exact distance between the spot of apprehension of the accused persons and other landmarks is also not a ground to discard the testimonies of the police officials. The contention that there has been a non compliance of section 42 of the NDPS Act in as much as no search authorization for the search of the vehicle in question was taken, has also no merit for the secret information received in this case was not that the contraband was concealed in the motorcycle in question (which even otherwise does not have any storage space) but it was to the effect that the suspects would be coming on a motorcycle and would be carrying contraband and that therefore there was no necessity to obtain a search authorization warrant. Further admittedly the vehicle in question was not searched at all as the contraband was recovered from the bags being carried by the accused persons themselves. It is also not in dispute that the secret information received in this case was duly reduced into writing and was also communicated to the senior officials. In view thereof, in the considered opinion of this court, there has been no non compliance of the provisions of section 42 of the NDPS Act, which can be stated to have vitiated the recovery proceedings. Yet another contention that has been much emphasised by Ld. Defence counsel Sh. Das is that though in FIR No. 18/07 PS Special Cell Page 62 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
the main chargesheet filed, it has been asserted by the prosecution that it was the secret informer who had informed Inspector Anil Dureja about the accused persons coming to the spot to deliver the contraband, in the supplementary chargesheet it has been averred that it was the interception of the phone calls of the accused persons Gurdeep and Jagdeo that led to the apprehension of the accused persons and the contention therefore is that the said inconsistent stand show that there has been non compliance of section 42 of the NDPS Act. In the considered opinion of this court, there is no discrepancy in the said two averments for SI Harbir Singh in his evidence has explained that based on the intercepted mobile conversations, he had given some information to Inspector Anil Dureja about the activities of accused Gurdeep and Jagdeo with respect to dealing in contraband in Delhi, the specific information about Gurdeep and Jagdeo coming to the spot on the particular date of their interception was developed by Inspector Anil Dureja through his own sources. At this stage it will also be relevant herein to point out that though Ld. Defence counsel Sh. Arvind has relied upon a judgment of the Hon'ble Supreme Court to contend that the section 50 notice was not served upon the accused persons and that this itself vitiates the recovery, it is to be borne in mind that the recovery of contraband in the present case has not been effected from the FIR No. 18/07 PS Special Cell Page 63 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
person/body of the accused persons but has been effected from the bags beings carried by them and it has now been well settled by a catena of judgments that provisions of section 50 NDPS Act are not applicable to such cases where the recovery has not been affected from the body of the accused persons. Much emphasis has then also been placed by Ld. Defence counsel Sh. Das with respect to the variations in the colour of the recovered substance produced in court and the samples drawn therefrom sent to the FSL. Ld. Defence counsel Sh. S.S. Das has pointed out that during the deposition of PW4, the pullandas containing the substance asserted to have been recovered from the accused persons was opened and was found to contain brown colour powder though the samples drawn therefrom were found to be of light yellow colour. His contention therefore is that the said variation should be considered sufficient for this court to come to a conclusion that the case property has been tampered with. The said contention of the Ld. Defence counsel also cannot be accepted by this court for when the FSL expert Dr. Madhulika Sharma appeared in the witness box as PW14 and deposed that the colour of the samples received for analysis was found to be cream colour and that over a passage of time, the colour of a substance changes due to moisturization and hence therefore did give an explanation for the difference between the colour of the case property FIR No. 18/07 PS Special Cell Page 64 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
produced in the court and that of the sample, the defence did not choose to question her deposition at all. It appears that no challenge was made to the deposition of the said witness because during the recording of the deposition of Dr. Madhulika Sharma by the Ld. Predecessor of this court, it had come to the notice of Ld. Predecessor that the FSL report Ex.PW14/A, the report filed alongwith the chargesheet had been tampered with and therefore the Ld. Predecessor had directed that a copy of the FSL report brought by Dr. Madhulika Sharma in the court on the date of her examination, be also taken on record. Admittedly, the copy of the said FSL report produced by PW14 during her deposition, mentions that on gas chromatography, the samples Ex.S1, S3, S5 and S7 were found to contain diacetylmorphine to the extent of 31.6%, 41.2%, 26.04% and 34.8% respectively. The said percentages are also mentioned clearly in the body of the charges framed for the first time against the accused persons and the said charges were framed on 30.10.2007, on the basis of the original FSL report Ex.PW14/A. However it appears that thereafter an attempt was made to rub/remove the number 3 and 41 from the said percentages in Ex.PW14/A and it is this tampering which had come to the notice of the Ld. Predecessor of this court while recording the deposition of PW14 and perhaps that is the reason that the defence did not wish to crossexamine this witness. Though no doubt it is being FIR No. 18/07 PS Special Cell Page 65 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
rightly contended by the Ld. Defence counsel that it has not been proved before this court at all as to when exactly the said tampering was done and by whom, it can be stated that it is not the prosecution which would have gained anything from reducing the said percentages. Further even if the said tampering is not taken into consideration on the ground that it is not possible to determine as to who would have done the said tampering, as stated hereinabove the defence cannot derive any benefit from the asserted variation in the colour of the sample and that of the case property, in view of the categorical deposition given by the expert Dr. Madhulika Sharma explaining the said variation and the defence choosing not to crossexamine her on this issue. Further admittedly during the entire trial no steps were taken by the accused persons to get the case property retested on the ground of the asserted variation in the colour of the same and the samples in question and it is only during the course of final arguments that it is being submitted that the benefit of doubt must of granted to the accused persons in view of the variation in the colour of the case property and the samples. In the considered opinion of this court, the defence cannot be allowed to derive any benefit from the said asserted variation in view of the categorical deposition given by the expert Dr. Madhulika Sharma.
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57. This court therefore finds no reason whatsoever to doubt the deposition of the various prosecution witnesses who have deposed in detail about the search and seizure proceedings that were conducted at the spot in question and during which 4 Kg of heroin, one pistol and fake currency notes were recovered from the accused persons Jagdeo and Gurdeep. No doubt the investigating agency could not join any public witnesses in the investigation, recently the Hon'ble Supreme Court in two of its judgments pronounced in NDPS cases, titled and reported as Ram Swarooop Vs. State 2013 Crl. L.J. 2997 and Kashmiri Lal Vs. State of Haryana 2013 Crl. L.J. 3036, has observed that ordinarily the public at large show their disinclination to come forward to become witnesses and that even in the absence of independent witnesses, a court can, on the sole testimony of the police officials believe the prosecution's case to be true, more so if the court has no reasons to suspect the truthfulness of the records produced by the police officials. In the present case, as discussed hereinabove, this court has no reasons to suspect to truthfulness of the records produced by the police officials, particularly the intercepted mobile conversations and therefore this court is of the considered opinion, that even in the absence of public witnesses, the prosecution has been able to prove that 4 Kg of heroin, a pistol and fake currency were recovered from the accused persons Jagdeo and Gurdeep FIR No. 18/07 PS Special Cell Page 67 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
on 24.03.2007.
58.Coming now to the role of accused Sukhwinder, though no contraband has been recovered from him, he has been charged for having conspired with accused Jagdeo and Gurdeep for doing the business of drug trafficking and fake currency notes in India and the evidence that has been brought by the prosecution to prove the said charge of conspiracy is again the intercepted mobile conversations. The CDs in question which have been played in the court show that right from the period February, 2007 till the date of apprehension of the accused persons Jagdeo and Gurdeep, both of them were in touch and in conversation with each and with this accused Sukhwinder. To understand the context of the said conversations, it will be relevant herein to reproduce the transcripts of some of the conversations that this accused Sukhwinder had with accused Gurdeep and Jagdeo (the conversations that have been heard in the court during trial were in Punjabi and the transcripts thereof both in Punjabi and Hindi were filed on record by the IO SI Upendra Solanki and were verified by this court and the defence counsels to be containing the correct account of the conversations heard): (Call No. 40967, Target No. 9871060613, Start time 08.02.2007 at 17:46:50) Gurdeep: Hello hi.
Sukhwinder: Achha kitne hazar chahiye tha wo jo kaam. FIR No. 18/07 PS Special Cell Page 68 of 89
SC No. 82/08 NCB Vs. Jagdeo Singh & Ors. Gurdeep: Kya matlab. Sukhwinder: Do hazar ka ya das hazar ka. Gurdeep: Jitna kaho utna ho jayega teen ka ho jayega. Sukhwinder: Teen ka jugad jo jayega. Gurdeep: Haan ho jayega, aisa karo teen biltiyan bana lo. Sukhwinder: Thik hai thik hai. Gurdeep: Thik hai...koi baat nahi cheez pure honi chahiye Sukhwinder: O thik hai. Gurdeep: Company ka maal ho to koi baat hi nahi. Sukhwinder: Chal thik hai. Gurdeep: Jo maine bheja tha na kapdo wala sample wo
bilkul thik hai...wo bola tum apna achha material hai wo lao mittichoora hai wo lao wo nahi sara maal ye hi hai Raymond.
Sukhwinder: OK.
Gurdeep: OK chalo thik hai, achha suno abhi paise nahi aye
hain.
Sukhwinder: Nahi.
Gurdeep: Dekh lo aye hain to lao pakad ke.
Sukhwinder: Mai apne aap hi lau yadi aye hain to kehne ki zarurat
nahi.
Gurdeep: Achha OK.
(Call No. 72287, Target No. 9871060613, Calling No. 9876933745, called No. 9871060613, Start Time 13.03.2007 at 15:45:47) Gurdeep: Hello, hi kya baat hai tumhari bell nahi mere Hutch phone te maine jaise hi dial kiya sath hi tumhara phone aya.
Sukhwinder: Achha. Gurdeep: Haan. Sukhwinder: Achha aisa karo FIR No. 18/07 PS Special Cell Page 69 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors. Gurdeep: Haan ji kaho. Sukhwinder: Sawere tu do hazar rupye ka keh raha hai. Gurdeep: Haan. Sukhwinder: Sawere. Gurdeep: Kitne Sukhwinder: Do hazar. Gurdeep: Haan wo do. Sukhwinder: Achhaachha. Gurdeep: Koi nahi kar denge Sukhwinder: Ek sawere nu, ek sham nu fir char hazar ho jayenge. Gurdeep: Yaar meri baat suno, jo kaam karo jaldbazi me mat karo. Sukhwinder: Baat to sun. Gurdeep: Haain Sukhwinder: Ye jaldbazi kaha. Gurdeep: Jaldbazi nahi hai ye? Sham, sham ko banda safe hota hai aur sare kaam kar leta hai. Sukhwinder: Ye to tune dekhna hai. Gurdeep: Wo agle kehte hain evening evening. Sukhwinder: Mujhe nahi pata evening evening kya hota hai. Gurdeep: Sham ko, andhere ko kehte hain yaar. Sukhwinder: Do ka sawere karwa do yaar kaam nahi chalega, sawere karwa denge. Gurdeep: Chal mai pata karta hu. Sukhwinder: Haan. Gurdeep: Puch kar batata hu. Sukhwinder: Sawere sawere do ka ho jaye aur sham ko char ka. Gurdeep: Do ka sawere hota hai fir char ka sham nahi ho. Sukhwinder: Haan meri baat manoge. Gurdeep: Haan manne wali nahi hai, dusre ka time dekhna hota hai jise karna padta hai. FIR No. 18/07 PS Special Cell Page 70 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors. Sukhwinder: Yaar meri baat mano to raat ko baat kar lo, sawere agle ke paas pahuch jao raton raat me. Gurdeep: Yaar jise karna padta hai use hi pata hota hai. Sukhwinder: Yaar meri baat mano na raat ko baat kar lo sawere agle ke paas pahuch jao. Gurdeep: Yaar ab hoga agle ko sawere hi denge samjhe ki nahi. Sukhwinder: Dopahar ko wapas ho ja tu agle ko sham ko 9 bajte hi mai phone karke usse baat kar leta hu abhi. Gurdeep: Thik hai subah wali baat thik hai. Sukhwinder: Mujhe nahi pata kya kahi, mai puchh leta hu usse. Gurdeep: Thik hai.
(Call No. 74932, Target No. 9317534945, start time 15.03.2007 at 21:31:00) Sukhwinder: Haan ji, uske sath baat ho gai hai.
Jagdeo: Achha.
Sukhwinder: Do inko de do.
Jagdeo: Achha.
Sukhwinder: Sadhe aath poora kar do, jo subah liya wo bhi.
Jagdeo: Haan ji.
Sukhwinder: Sadhe aath kar ke nikal aa.
Jagdeo: Achha thik hai fir mai nikal raha.
Sukhwinder: Fir hamara kaam chal jayega.
Jagdeo: Bas thik hai...thik hai.
Sukhwinder: Agar ho sakta hai 1020 chal ye dusra, Mintu Montu
ye kar lega kal hi.
Jagdeo: Haain ye nahi...wo Montu aur ve do lag jayenge na
inko kara diya maine.
Sukhwinder: Montu ko dusra 10 baje milega.
Jagdeo: Achha.
Sukhwinder: .......Band hai na jo wo rakh lena
FIR No. 18/07 PS Special Cell Page 71 of 89
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Jagdeo: Haan thik hai thik hai
Sukhwinder: Thik hai na
Jagdeo: Haan thik hai
Sukhwinder: Dusra inko de dena.
Jagdeo: Haan dunga...wo to mai usnehamne to abhi check
bhi nahi kiya hai kis tarah hai...do do bas inko
dene hain 2 passport thik hain na.
Sukhwinder: Fir thik hai.
Jagdeo: Ab to sadak par khada hu ab kaha check karunga.
Sukhwinder: Koi baat nahi, maine kaha ek tumhe dikhega band.
Jagdeo: Koi nahi hai, wo to maine aise hi kar liye.
Sukhwinder: Maine kaha band me bhi...gandh aati hai aur to
koi chakkar nahi hai.
Jagdeo: Hamne koi tension nahi leni hum bilkul taiyar rehte
hain......
(Call No. 75118, Target No. 9871060613, Start time 16.03.2007 at 8:34:49) Gurdeep: Hello Hi Jagdeo: Bas thik thak mai to idhar hu pind Gurdeep: Achha pind aa gya Jagdeo: Is tarah kara lo khud hi kar loge ya mundo ko bhejne ki zarurat hai ya nahi Gurdeep: Yadi bheja hai to bhej dena Jagdeo: By chance unko mat bhejna kyuki ayenge to kharcha pani dena padta hai kharcha pehle hi tight chal raha hai.
Gurdeep: Chalo dekh lena, mai aap hi kar lunga
Jagdeo: Aap hi karke na khud hi rakh lo wa baat kar lo
Sukhwinder: Haan ji sir kya haal hai
Gurdeep: Thik hai
FIR No. 18/07 PS Special Cell Page 72 of 89
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Sukhwinder: Achha mama aa raha hai aaj sham
Gurdeep: Achha
Sukhwinder: To aap hi kar lo
Gurdeep: Chalo kar lenge
Sukhwinder: Sari payment karwa rakhi hai cash karwa rakhi hai
Gurdeep: Thik hai thik hai
Sukhwinder: Yaar aaj kaam kharab ho gaya
Gurdeep: Nahi koi gal nahi ho jayega clear
Sukhwinder: Paise ki wajah se late ho gaya.. 200 KM chal kar aye.
Gurdeep: Achha settlement kar lenge koi baat nahi
Sukhwinder: Ye kar ke na sari payment OK kar rakho mere bhai
Gurdeep: Thik hai thik hai koi baat nahi
Sukhwinder: Baki ye lekar aa raha hai
Gurdeep: Thik hai kitne bande aa rahe hain
Sukhwinder: Bande sawere ayenge raat ko chale hain
Gurdeep: Achha kitne ayenge
Sukhwinder: Char baje chale hain chaar bhi aa jayen, 6 bhi aa
jayen, 7 bhi aa jayen, jitne kahenge utne hi aa jayenge. Raju bhi aa raha hai.
Gurdeep: Thik hai Sukhwinder: Haan Gurdeep: Thik hai Sukhwinder: Ye tu kara ke na...test..tu rakh lena. Gurdeep: Thik hai OK thik hai.
(Call No. 76447, Target no. 9876933745, Start time 17.03.2007 at 6:13:48) jagdeo: Waha pahunch kar baat ki thi. haan us time to bus stand par tha.
Sukhwinder: Haan ji
jagdeo: Namaskar, aur kya ho raha hai
FIR No. 18/07 PS Special Cell Page 73 of 89
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Sukhwinder: Thik hai
jagdeo: Baat ye hai ki hum munde ke sath hain
Sukhwinder: Haan
jagdeo: Haan usne to teen munde diye hain chadhane ke liye
teen munde haan ji
Sukhwinder: Chalo koi baat nahi
jagdeo: Haan ji ek munde ka visa thoda kharab hai
Sukhwinder: Achha
jagdeo: Maine kaha visa moharmahar set nahi ha lende te
visa mat do
Sukhwinder: Haan
jagdeo: Kehta hai wo hi jo humne wapas karaya tha munda
Sukhwinder: Kaun sa
jagdeo: Jo kam tha
Sukhwinder: Kam hoga
jagdeo: Maine kaha chalo koi nahi fir
Sukhwinder: Achha ye lo na.....
(Call No. 76459, Target No. 9876933745, calling no. 9876933745, called no. 987386607, start time 17.03.2007 at 6:35:44) Jagdeo: Haan ji sir.
Sukhwinder: Baat sun inke....mundo ka saron ka wazan check kar le.
Jagdeo: Achhaachha.
Sukhwinder: Ek hi.
Jagdeo: Thik hai.
Sukhwinder: ....
Jagdeo: Thik hai thik hai.
Sukhwinder: Thik
Jagdeo: Achha.
Sukhwinder: Pehle ka das.
FIR No. 18/07 PS Special Cell Page 74 of 89
SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
Jagdeo: Thik hai.
Sukhwinder: Ek bari baat kara dena.
Jagdeo: Kara dunga.
(Call number 83403, Target Number 9871060613, start time 21.03.2007 at 16:38:07) Jagdeo: Hello.
Gurdeep: 7 baje yaar late ho jayenge. Jagdeo: Lo ek bar baat kar lo. Sukhwinder: Haa ji bhai sahab. Gurdeep: Haan saat baje. Sukhwinder: Kitne hazar Gurdeep: Do kar dena...haan...do de dena. Sukhwinder: Char char. Gurdeep: Nahi nahi do thik hain. Sukhwinder: Char do yaar do thik nahi. Gurdeep: Nahi yaar. Sukhwinder: Kamaal hai do se kya hoga, raju kahan hai. Gurdeep: Gaya hai kahin aa jayega jaldi. Sukhwinder: Char to kar do yaar. Gurdeep: Kal nibta denge saare chinta mat kar
59.The said conversations (particularly the lines shown in bold) make it amply clear that all the three accused persons were involved together in some clandestine business and it was accused Sukhwinder who used to give instructions to Gurdeep and Jagdeo about where to make delivery and of how much. The instructions of Sukhwinder to Jagdeo to check that weight and smell of all 'mundo' and the insistence of Gurdeep that FIR No. 18/07 PS Special Cell Page 75 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
'maal' should be pure and should be dealt with in the evening for their 'banda' to be safe and the accused Sukhwinder agreeing to the same, all point out to the intention of accused Sukhwinder of playing a major role in the enterprise being run by accused Gurdeep and Jagdeo.
60.Though no doubt it is being rightly pointed by Ld. Defence counsels that the conversations do not mention the words 'drugs' or 'arms and ammunitions', fake currency, the tenor of the conversations is such that the same alongwith the actual recovery of drugs, arms and fake currency from accused Jagdeo and Gurdeep, leads to the only inference that all the accused persons Sukhwinder, Gurdeep and Jagdeo did have agreement to deal with the said things only. Once the prosecution has proved the actual recovery of drugs, arms and fake currency and the mobile conversations that took place between the accused persons, it was for the accused persons to have informed the court as to what were they talking about, if not drugs, arms and fake currency. It is but natural that persons dealing in illegal activities would not use the words 'drugs' or 'arms and ammunitions' but would resort to using code words and the accused persons in the present case have in most of their conversations, also used words like 'passport', 'cheque', 'visa', 'munde' to refer to the articles that they were dealing with. It is relevant to point out that infact in one of the conversations, the word 'heroin' is specifically used. This is a FIR No. 18/07 PS Special Cell Page 76 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
conversation between accused Gurdeep and one unknown person that was made on 23.03.2007 (the date of the apprehension of the accused persons Jagdeo and Gurdeep) in the afternoon and the said unknown person informed Gurdeep that one vehicle bearing no. HR 21 3487 has been apprehended at Phagwara and on search, 4 Kg of heroin has been recovered from the said vehicle and in response thereto, Gurdeep tells the person to see if anything can be done with respect to the sample taken.
61. The transcript of the said conversation runs as follows: (Call no. 86169, Target No. 9871060613, start time 23.03.2007 at 13:28:04) Gurdeep: Hello.
Unknown: Haan...gang mukt sargana, Gurbaksh Singh putra Bhagwan Singh, pehle bhi pakda gaya tha. Thane me 2003 me, Ramesh hai koi Jammu ki taraf pind padta hai usse li hai inhone gadi no. HR 21 3482, Phagwada se pakda hai truck se talashi li gai to 4 kilo heroin mili.
Gurdeep: Chalo khair tum ye dekho... Unknown: Parcha to darj ho chuka hai mere khayal me. Gurdeep: Nahi sample ka dekho na sample ka. Unknown: Thik hai haan haan wo mai kar lunga. Gurdeep: Chalo thik hai OK. Unknown: OK.
62.Then again after the accused Jagdeo and accused Gurdeep were apprehended in this case, accused Sukhwinder has conversations about FIR No. 18/07 PS Special Cell Page 77 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
the said arrest with atleast three persons from his mobile. On 24.03.2007 at about 09.21 AM, accused Sukhwinder has a conversation with one person who tells him that 'the incident had occurred in his presence and that they were on motorcycle' and Sukhwinder advises him not to worry and tells him to conceal himself for a few days. The tenor of the conversation makes it apparent that this person was present alongwith the accused Gurdeep and Jagdeo just before their apprehension. It will be relevant herein to reproduce some portion of the transcript of the said conversation: (Call No. 87356, Target No. 9317534945, Start Time 24.03.2007 at 09:21:29) Sukhwinder: Achha..sab kaise hua tujhe pata hai.
Mintu: Haan haan mere samne hua hai sara.
Sukhwinder: Achha
Mintu: Haan.
Sukhwinder: Wo bhi sath they
Mintu: Kaun unka to pata hi nahi unka to phone bhi nahi mil
Sukhwinder: Tu phone mat milana waha jaa dekh ke aa ya kisi aur
ko bhej.. tu kahi chhup ja kahi aur.
Mintu: Thik hai.
Sukhwinder: Number tumhare paas hai kya
Mintu: Ye landline ka number hai
Sukhwinder: Ek aur baat sun...tu udhar fauji ke paas aa ja
Mintu: Achha
Sukhwinder: Pehle thoda pata kar le
Mintu: Thik hai mai pata karke fauji ke paas jata hu abhi
Sukhwinder: Sara karke bachcho ko chhod aa fauji ke paas aa ja
FIR No. 18/07 PS Special Cell Page 78 of 89
SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
Mintu: Thik hai.
Sukhwinder: Do char din..fir udhar khelon me chale jana aur kuchh
Mintu: Bas badhiya.
Sukhwinder: To waha mai keh dunga..baat sun... thoda jaakar pata
kar le.
Mintu: Thik hai mai pata karke
Sukhwinder: Khud mat karna
Mintu: Haan haan thik hai
Sukhwinder: Matha tikane waha khud na jana kisi aur ko bhej ke
pata kar.
Mintu: Haan ye motorcycle par the wo puncture ho gai
Sukhwinder: Ye akela tha...waha khada tha
Mintu: Haan...ek minute mai late pahucha nahi to mai bhi
sath tha
Sukhwinder: Chalo..jaise bhi hoga... chalo ho jayega koi chinta
ki baat nahi..chque bhi sath tha?
Mintu: Cheque ek tha bada haan tees hazar ka
Sukhwinder: Tees hazar...koi baat nahi chalta hai...aur aa jayega
Mintu: Banda to nahi ayega.
Sukhwinder: Koi nahi banda bhi ayega...tu hai na babbe ke sath
baat kar...baki dekhi jayegi
Mintu: Thik hai
Sukhwinder: Aur
Mintu: Bas badhiya
Sukhwinder: Ghabrane ki zarurat nahi udhar aa jana
Mintu: Thik hai
63.Accused Sukhwinder thereafter also has a conversation with one unknown person on 24.03.2007 and informs him that accused Jagdeo has FIR No. 18/07 PS Special Cell Page 79 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
been arrested and that he even had in his possession alongwith Rs. 3000/, one very beautiful cheque which the unknown person had infact been asking for (the reference 'cheque' has to be read in the context of a pistol recovered from accused Jagdeo). The transcript of the said conversation runs as follows: (Call no. 87895, Target No. 9317534945, Start Time 24.03.2007 at 18:10:53) Unknown: Hello...kidhar hai.
Sukhwinder: Idhar hi Punjab.
Unknown: Achha achha kehte hain raat Jagga utha liya.
Sukhwinder: Haan aur.
Unknown: Aur? Thik thak tu suna.
Sukhwinder: Teen hazar rupya tha, ek cheque tha jo tu mang
raha tha wo hi.
Unknown: Achha.
Sukhwinder: Bahut badhiya tha bahar ka tha.
Unknown: Sath hi gaya cheque.
Sukhwinder: Jo tu mang raha tha.
Unknown: Haan.
Sukhwinder: Wo bhi...Bahut khoobsurat cheez thi bahar ki.
Unknown: Information thi, mukhbari thi, kya baat thi.
Sukhwinder: Ab ho sakta hai ki koi brach hai Delhi me koi chakkar
to hai mukhbari kar di kisi ne.
Unknown: Achha.
Sukhwinder: Aur koi nai taza.
Unknown: Bas thik hai mai bata du Jassi ko phone kar du wo to
mil nahi raha.
Sukhwinder: Aa gaya tha ho gai thi Jassi ke sath baat.
FIR No. 18/07 PS Special Cell Page 80 of 89
SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
Unknown: Chalo thik hai idhar baabe ka phone aya tha bata do.
Sukhwinder: Idhar aya dusre bande ka phone.
Unknown: Nahi
Sukhwinder: Jo awe to phone milwa dena yaar.
64.He also then has a conversation with one lady whom he informs that there has been an 'accident' with one of their associates "hamare bande ke sath accident hua hai" and also tells her that the said associate had Rs. 3000/ and 3 'khad ki boriyan'. The fact that this accused Sukhwinder after the apprehension of accused Jagdeo and Gurdeep spoke about their arrest to three persons and referred to the said persons as 'hamare bandey' and expressed his concern with the said arrest has to be considered as relevant for determining his complicity in the present case. No doubt with the arrest of accused Jagdeo and Gurdeep the conspiracy in question had come to an end and therefore the statements made by accused Sukhwinder cannot be read against his coconspirators u/s 10 of the Evidence Act, but the said statements can be read against the accused Sukhwinder himself in reference to the conspiracy, for the making of the statements is a conduct of an accused which is otherwise relevant u/s 8 of the Indian Evidence Act. In case titled as State Vs. Navjot Sandhu @ Afsan Guru, the Hon'ble Supreme Court while discussing the role of accused Syed A.R. Gilani in the conspiracy hatched for attacking the Parliament took into consideration as admissible evidence against Gilani, FIR No. 18/07 PS Special Cell Page 81 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
the telephone conversation that he had after the said attack had occurred. In the said conversation, Gilani appeared to be approving the Parliament attack that had happened in Delhi and the said conversation was held by the Hon'ble Supreme Court to give rise to a serious suspicion about the knowledge of Gilani of the incident and his tacit approval of it. It was held that the said conduct of Gilani was not above board. The Hon'ble Supreme Court however gave the benefit of doubt to this accused on the ground that since the conversation did not refer to any other incriminating fact, other than Gilani expressing his pleasure on the attack on the Parliament, it was not proved beyond doubt that accused had conspired in the attack. What this court wants to emphasize is that a conversation made by an accused after the conspiracy had come to an end was considered relevant evidence of his conduct by the Hon'ble Supreme Court and that is the reason that this court has also considered as relevant for the determination of the role of accused Sukhwinder, the conversations made by him after the arrest of accused Gurdeep and Jagdeo. The said conversations alongwith the conversations that this accused had with accused Jagdeo and Gurdeep before their arrest, leads to the only irresistible inference that this accused was in conspiracy with the other two accused persons in illicit trafficking of drugs, fake currency and arms and ammunitions.
FIR No. 18/07 PS Special Cell Page 82 of 89
SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
65.It is no longer res integra as to what acts constitute the offence of conspiracy. The Hon'ble Supreme Court in the case titled as Firozuddin Basheeruddin & Ors. Vs. State of Kerala (2001) 7 SCC 596, explained in detail as to what acts constitute a conspiracy and made the following observations Like most crimes, conspiracy requires an act (actus reus) and an accompanying mental state (mens rea).
The agreement constitutes the act, and the intention to achieve the unlawful objective of that agreement constitutes the required mental state. In the face of modern organised crime, complex business arrangements in restraint of trade, and subversive political activity, conspiracy law has witnessed expansion in many forms. Conspiracy criminalizes an agreement to commit a crime. All conspirators are liable for crimes committed in furtherance of the conspiracy of any member of the ground, regardless of whether liability would be established by the law of complicity. To put it differently, the law punishes conduct that threatens to produce the harm, as well as conduct that has actually produced it. Contrary to the usual rule that an attempt to commit a crime merges with the completed offence, conspirators may be tried and punished for both the conspiracy and the completed crime. The rationale of conspiracy is that the required objective manifestation of disposition to criminality is provided by the act of agreement. Conspiracy is a clandestine activity. Persons FIR No. 18/07 PS Special Cell Page 83 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
generally do not form illegal covenants openly. In the interest of security, a person may carry out his part of a conspiracy without even being informed of the identity of his coconspirators. Since an agreement of this kind can rarely be shown by direct proof, it must be inferred from circumstantial evidence of cooperation between the accused. What people do is, of course, evidence of what lies in their mind. To convict a person of conspiracy, the prosecution must show that he agreed with others that together they would accomplish the unlawful object of the conspiracy.
(Para 23) Another major problem which arises in connection with the requirement of an agreement is that of determining the scope of a conspiracy who are the parties and what are their objectives. The determination is critical, since it defines the potential liability of each accused. The law has developed several different models with which to approach the question of scope. One such model is that a chain, where each party performs a role that aids succeeding parties in accomplishing the criminal objectives of the conspiracy. No matter how diverse the goals of a large criminal organization, there is but one objective: to promote the furtherance of the enterprise. So far as the mental state is concerned, two elements required by conspiracy are the intent to agree and the intent to promote the unlawful objective of the conspiracy. It is the intention to promote a crime that FIR No. 18/07 PS Special Cell Page 84 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
lends conspiracy its criminal cast.
(Para 24) Conspiracy is not only a substantive crime, it also serves as a basis for holding one person liable for the crimes of others in cases where application of the usual doctrines of complicity would not render that person liable. Thus, one who enters into a conspiratorial relationship is liable for every reasonably foreseeable crime committed by every other member of the conspiracy in furtherance of its objectives, whether or not he knew of the crimes or aided in their commission. The rationale is that criminal acts done in furtherance of a conspiracy may be sufficiently dependent upon the encouragement and support of the group as a whole to warrant treating each member as a causal agent to each act. Under this view, which of the conspirators committed the substantive offence would be less significant in determining the defendant's liability than the fact that the crime was performed as a part of a larger division of labour to which the accused has also contributed his efforts.
(Para 25)
66.Further explaining as regards the kind of evidence that can be considered sufficient for proving a charge of conspiracy, the Hon'ble Apex court observed:
Regarding admissibility of evidence, loosened standards prevail in a conspiracy trial. Contrary to the usual rule, FIR No. 18/07 PS Special Cell Page 85 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
in conspiracy prosecution, any declaration by one conspirator, made in furtherance of a conspiracy and during its pendency, is admissible against each co conspirator. Despite the unreliability of hearsay evidence, it is admissible in conspiracy prosecutions. Thus conspirators are liable on an agency theory for statements of coconspirators, just as they are for the overt acts and crimes committed by their confreres.
(Paras 26 and 27)
67. The Hon'ble Delhi High Court also recently, after referring to various decisions reiterated the law with respect to conspiracy by making the following observations in the case titled as Rakesh Kumar & Ors. Vs. State 163(2009) Delhi Law Times 658 (DB):
The unlawful agreement which amounts to a conspiracy need not be formal or express, but may be inherent in and inferred from the circumstances, especially declarations, acts, and conduct of the conspirators. The agreement need not be entered into by all the parties to it at the same time, but may be reached by successive actions evidencing their joining of the conspiracy. Since a conspiracy is generally hatched in secrecy, it would quite often happen that there is no evidence of any express agreement between the conspirators to do or cause to be done the illegal act. For an offence under Section 120B, the prosecution need not necessarily prove that the perpetrators expressly agreed to do or cause to be done FIR No. 18/07 PS Special Cell Page 86 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
the illegal act; the agreement may be proved by necessary implication. The offence can be only proved largely from the inference drawn from acts or illegal omission committed by the conspirators in pursuance of a common design. The prosecution will also more often rely upon circumstantial evidence. It is not necessary to prove the actual meeting of conspirators. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design is sufficient. Surrounding circumstances and antecedent and subsequent conduct of accused persons constitute relevant material to prove charge of conspiracy. (emphasis supplied)
68.Keeping in mind the aforementioned judicial dicta, this court is of the considered opinion that the intercepted mobile conversations in the present case, discussed hereinabove clearly reflect such surrounding circumstances, the antecedents and subsequent conduct of accused Sukhwinder, that the only necessary inference that is to be drawn is that this accused was in conspiracy with accused Jagdeo and Gurdeep intheir illegal activities of dealing in drugs, arms and ammunition and fake currency and is to be held guilty of the offences that he has been charged with.
69.In view of the discussion hereinabove, this court hereby holds all the FIR No. 18/07 PS Special Cell Page 87 of 89 SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
accused persons guilty of the offences that they have been charged with. Accused Jagdeo is hereby held guilty of having committed offences punishable u/s 21(c) and 29 of the NDPS Act (the quantities of contraband recovered comes to be more than commercial quantity even after calculating the same on the basis of the purity of diacetylmorphine present therein), Section 489C and section 120B of the IPC and Section 25 of the Arms Act. Accused Gurdeep is hereby held guilty of having committed offences punishable u/s 21(c) and 29 of the NDPS Act, Section 489C and section 120B of the IPC. Accused Sukhwinder is hereby held guilty of having committed offences punishable u/s 21(c) and 29 of the NDPS Act, Section 489C and section 120B of the IPC.
70.At this stage, it will also be relevant herein to mention that accused Jagdeo had filed an application u/s 340 Cr.PC during the trial praying therein that criminal action be initiated against the police officials who had forged his signatures on various documents filed alongwith the chargesheet. No separate evidence was led by the accused in support of this application and he and Ld. Counsel Sh. Arvind representing him had stated before this court that the evidence already on record be considered in support of the said application. Keeping in view the observations made by this court in paragraph 54 of this judgment, the said application is found to be without any merit and is therefore hereby dismissed. FIR No. 18/07 PS Special Cell Page 88 of 89
SC No. 82/08 NCB Vs. Jagdeo Singh & Ors.
However as regards the beatings received by the accused persons Gurdeep and Jagdeo during the police custody, keeping in view the observations made by this court in paragraph 55, the concerned DCP is hereby directed to hold an inquiry to determine who the erring police officials were and thereafter to take necessary action against them. Announced in open Court on this 21st December, 2013 (Anu Grover Baliga) Special Judge NDPS : New Delhi Patiala House : New Delhi FIR No. 18/07 PS Special Cell Page 89 of 89