Delhi District Court
State vs . (1) Vivek Chaudhary on 27 February, 2015
IN THE COURT OF SH. REETESH SINGH, ASJ-02/FTC
NEW DELHI DISTRICT PATIALA HOUSE COURTS, DELHI
Case ID No. 02403R1014772007
Session Case No. 119/2013
State vs. (1) Vivek Chaudhary
S/o. Sh. Ashok Chaudhary
R/o.Badi Subji Mandi,
Haridwar, Uttrakhand.
(2) Kuldeep Grover
S/o. Sh. Ajeet Singh Grover
R/o. Jwalapur, Haridwar, Uttrakhand.
FIR no. 55/2007
PS: Special Cell
U/s: 489 (B) & (C) /120B IPC
Date of institution of the case : 05.12.2007
Date on which judgment reserved : 21.02.2015
Date of announcement of judgment : 27.02.2015
JUDGMENT
1. Vivek Chaudhry and Kuldeep Grover are facing trial before this Court for offences alleged to have been committed by them and punishable under sections 120B, 489B and 489C read with Section 34 of the Indian Penal Code (IPC).
2. The case of the prosecution is that secret information was received by Insp. Badrish Dutt in the office of the Special Cell, Delhi Police, Southern Range, New Friends Colony that one Vivek Chaudahry resident of Haridwar (Uttarakhand) involved in trafficking of fake Indian currency notes (FICN) would be coming on 09.07.2007 to Delhi at about 4:30 PM with an associate to supply FICN to unknown persons in a Tata State vs. Vivek Chaudhary & Kuldeep Grover FIR No. 55/2007, PS Special Cell 1/38 Indica silver coloured vehicle bearing registration number HR-99-AC-HQ- 7723 via Ghazipur border and would move towards Khichdipur Bridge on National Highway (NH) 24 near the East Vinod Nagar Gurudwara. This information was brought to the notice of senior police officers and on their directions a police team under the leadership of Insp. Badrish Dutt and consisting of SI. A.K. Singh, HC Vijender Singh, HC Nirdesh Kumar, HC Karan Singh, HC Joginder and Naresh Kumar was constituted.
3. The said police team along with the secret informer proceeded at about 3:30 PM in two private vehicles and weapons issued after making DD Entry No. 9. The police team reached the Gurudwara, East Vinod Nagar at about 4:15 PM. SI A.K. Singh requested 4 to 5 members of the public to join the proceedings but all of them declined without disclosing their names and addresses. Insp. Badrish Dutt briefed the members of the police team who were deployed at various places on the bridge at NH 24. At about 4:45 PM, a Tata Indica silver coloured vehicle bearing number HR-99-AC-HQ-7723 occupied by two persons came on NH24 from the direction of Ghazipur and stopped on the bridge. The person sitting on the front passenger seat was identified by the secret informer as Vivek Chaudhary and the driver as his associate. Both these persons stepped out of the vehicle and started waiting. Vivek Chaudhery was seen to be carrying a brown coloured rexine bag in his right hand. After waiting for about 15 minutes, these two persons started proceeding towards their car with the intention to leave. At that stage, these two persons were apprehended by the members of the police team on the directions of Insp. Badrish Dutt. One was Vivek Chaudhry and the other the person who was driving the said vehicle revealed his name as Kuldeep Grover. The rexine bag carried by Vivek Chaudhry was opened and on search was found to be containing a bundle wrapped in an old State vs. Vivek Chaudhary & Kuldeep Grover FIR No. 55/2007, PS Special Cell 2/38 Bengali newspaper. The bundle upon opening had eight wads of FICN with each wad having 100 notes of denomination Rs.500/- amounting to Rs.4,00,000/-. Upon visual inspection the FICN were found to be fake. All wads were serially numbered as 1 to 8 in separate sheets, signed by the accused and other witnesses. These eight wads of FICN were kept in polythene bags sealed with the seal of AKS and seized vide a seizure memo along with the rexine bag and Bengali Newspaper.
4. Upon the search of the person of accused Kuldeep Grover, two wads of FICN were recovered from the pockets of his trousers, with one wad containing 100 notes of denomination Rs.500/- and the other wad contained 95 notes of Rs.500/- denomination. The total FICN recovered from Kuldeep Grover was Rs.97,500/-. The wad containing 100 notes was marked as serial number 9 and the wad containing 95 notes was marked as serial number 10.
5. Serial number of each note was noted down on two separate sheets signed by the accused and other witnesses. The wads were kept in two separate plastic polythene bags and sealed with the seal of AKS and seized vide a seizure memo. The seal was handed over to HC Joginder Singh.
6. Search of the vehicle Tata Indica number HR-99-AC-HQ- 7723 was also carried out but nothing incriminating was found in the said vehicle.
7. Rukka of the proceedings of apprehension and recovery was prepared by SI. A.K. Singh and was sent to the Police Station through Ct. Naresh Kumar for registration of the FIR. Further investigation of the case State vs. Vivek Chaudhary & Kuldeep Grover FIR No. 55/2007, PS Special Cell 3/38 was marked to ASI Ram Krishan. He reached the spot at about 9pm and the documents already prepared, the case property and the custody of the accused persons were handed over to him. He prepared the site plan, interrogated and arrested both the accused persons and recorded their disclosure statements. He also seized the Tata Indica Car. He obtained the police custody of the accused Vivek Chaudhary and went for investigation to Bhagalpur Bihar with SI A.K. Singh, HC Bijender Singh and Ct Anil to apprehend Daud, Tau and Shahnawaz as per the disclosure statement of Vivek Chaudhary but nothing could be found out about them. He again took accused Vivek Chaudhary alongwith SI A.K. Singh, HC Bijender and Ct Anil for investigation to Shahranpur to look for Rafiq but he could not be found. Thereafter, he went to Muzaffarnagar in search of S.P. Singh but could not be found. ASI Ram Kishan also went for a second time for the purposes of investigation to Bhagalpur Bihar with Ct Naresh Kumar and collected records of hotel Gaylord where the accused Vivek Chaudhary revealed that he had stayed. On 31.07.2007, he handed over the case file to Insp. Badrish Dutt consequent to his transfer.
8. The investigation was thereafter transferred to SI K.P. Rana who filed the charge-sheet against the accused persons. The seized FICN was sent to the Currency Notes Press, Nasik Road, Maharashtra and after receipt of its report, the same was filed along with a supplementary charge-sheet by SI K.P. Rana.
9. By order dated 01.03.2008 charges were framed against both the accused persons. Both pleaded not guilty and claimed trial.
10. In all, the prosecution examined 9 witnesses to prove its case. PW1 A.K. Singh, PW6 HC Joginder Singh and PW8 Ct. Naresh State vs. Vivek Chaudhary & Kuldeep Grover FIR No. 55/2007, PS Special Cell 4/38 Kumar were members of the police team which apprehended the accused persons and effected recoveries from them. PW2 ASI Rohtas was posted the duty officer and had recorded the FIR. PW3 is Amit Goel owner of the said Tata Indica vehicle number HR-99-AC-HQ-7723. PW4 Himanshu Goel proprietor of M/s New Sharma Travels had taken on rent the said vehicle. PW7 is SI Bhim Sen who had gone to the Currency Notes Press, Nasik Road, Maharashtra to collect their opinion regarding the seized FICN and the case property and came back to Delhi and handed over the same to the MHC (M), PS Spl. Cell. PW9 is Ranjeet Tiwari. PW5 is ASI Ram Kishan to whom the investigation of the case was handed over after apprehension of the accused persons by the police team. The last IO SI KP Rana was not examined as a witness.
11. After all the witnesses of the prosecution stood examined, statement of the accused persons under Section 313 Cr.P.C was recorded. Therefore, accused Vivek Chaudhary led evidence in defence and examined himself as DW1 and closed defence evidence.
12. At the stage of final arguments, the prosecution moved an application under Section 311 of the Cr.P.C praying for grant of permission to examine seven additional witnesses. The said application was allowed by the Ld. Predecessor of this Court vide order dated 26.03.2012 but in Criminal Revision Petition No. 207/ 2012 filed by the accused, the said order was set aside by the Hon'ble High Court on 20.04.2012. The order of the Hon'ble High Court was challenged further before the Hon'ble Supreme Court by the State in Appeal (Crl) No. 8213/2012 which was dismissed by order dated 21.01.2014. Thus no additional witnesses were examined by the prosecution.
State vs. Vivek Chaudhary & Kuldeep Grover FIR No. 55/2007, PS Special Cell 5/38
13. As recorded above PW1, PW6 and PW8 were the members of the police team which apprehended the accused persons and effected recoveries from them. All these three witnesses have deposed similarly in their examination in chief and the same are not being repeated herein for the sake of brevity.
14. In cross-examination PW1 SI A.K. Singh deposed that the secret information was passed to him by Inspector Badrish Dutt at about 3 p.m. on 09.07.2007 when he was in the office of the Special Cell. He deposed that the secret information was given to Inspector Badrish Dutt by the informer in his (PW1) presence and that no other person was present in the room. He deposed that the private vehicles used belonged to him and Inspector Badrish Dutt but they did not claim any reimbursement for traveling allowance. He deposed that the private vehicle used by him was Wagon-R bearing registration no. DL-3CZ-1760 but the same was not registered in his name. He could not remember registration number of the other vehicle but the same was of make Matiz. He did not mention the registration number of the vehicles in the DD entry while leaving the office. He deposed that he was driving in his own vehicle and Inspector Badrish Dutt, HC Yogender and the informer were sitting in his car but he could not remember who was driving the other car. He deposed that the secret information was orally conveyed by Inspector Badrish Dutt to the ACP Special Cell Sh. K.K. Kaushik and Inspector Badrish Dutt had taken oral permission for the raid. PW-1 could not remember the names of the police officers who were carrying arms ammunition. He deposed that he was carrying his official seal and denied that it was issued by the Malkhana. He admitted that on 08.07.2007 and 09.07.2007, he was owning Mobile numbers 9310962002 and 9811488499 but deposed that he was using only number 9811488499 on 08.07.2007 and was not using either of these State vs. Vivek Chaudhary & Kuldeep Grover FIR No. 55/2007, PS Special Cell 6/38 two numbers on 09.07.2007. He deposed that the number 9310962002 was not switched off on 08.07.2007 and 09.07.2007 but was being used by some other officer whose name he did not remember. He denied the suggestion that he was using both these numbers on 09.07.2007. In response to a question as to how people could contact him when he was not carrying his mobile phone, PW1 answered that it would depend upon the situation.
15. PW1 in his cross examination further deposed that both the vehicles of the police team reached the spot simultaneously and they reached within 45 minutes after leaving the office. He admitted that there was movement of public persons near the spot but he did not take any action against any public person for not joining the raiding party. He could not remember whether there was any bus stand situated at distance of 20 steps from the spot. He deposed that the Gurudwara was at a distance of 100 meters from the spot and that he alongwith Inspector Badrish Dutt, Ct Naresh and the informer positioned themselves on the side going towards Gazipur while HC Bijender Singh and HC Joginder Singh were deployed on the side going towards Mayur Vihar from the Gazipur. HC Nirdesh and HC Karan were deputed under the bridge. He deposed that the accused persons arrived about half an hour of the police team reaching the spot. He deposed that he himself overpowered Vivek Choudhary and Inspector Badrish Dutt overpowered Kuldeep Grover with the help of other team members. He was not aware whether any member of the police team made any phone call to any person or received any phone call after reaching the spot and before arrival of the accused persons. He deposed that the accused persons put up minor resistance but they did not raise any noise and therefore no public person gathered at the spot. By minor resistance he meant that the accused tried to run away but they had State vs. Vivek Chaudhary & Kuldeep Grover FIR No. 55/2007, PS Special Cell 7/38 already been surrounded by the members of raiding party. He deposed that the car of the accused persons was at a distance of 10-15 meters from the place where he was standing and after the apprehension of the accused persons he did not request any public person to join the police party. He did not know whether any member of the raiding party requested any other public person to join the proceedings. He deposed that secret information was disclosed to the accused persons before the conducting their search but he did not state the said fact the IO about secret information being revealed to the accused persons. .
16. PW1 in his cross examination further deposed that he had opened the bag and had signed the pullanda of currency notes but could not say whether any other witness signed the same. He deposed that eight pullandas were prepared of the FICN seized from Vivek Choudhary and two pullandas of the FICN seized from Kuldeep Grover. He deposed that the seizure memos regarding currency notes were prepared before sending rukka. He deposed that eight sheets were used for noting down the serial numbers of the currency notes seized from Vivek Choudhary and two sheets were used in respect of Kuldeep Grover. He was not aware about mode by which Ct Naresh took the rukka at 10pm. He deposed that Insp. Badrish Dutt had informed office of the Special Cell for sending IO ASI Ram Kishan before sending rukka. ASI Ram Kishan reached the spot five minutes before the rukka was sent. He did not know by which mode of transportation ASI Ram Kishan reached the spot. He deposed that all the writing work were done by him while sitting on the footpath at the spot. He deposed that lists of serial numbers of currency notes was in his handwriting and there was street light at the spot. He deposed that he left the spot at 11pm in his vehicle to the office of the Special Cell and did not know how other members went from the spot and at what time. He State vs. Vivek Chaudhary & Kuldeep Grover FIR No. 55/2007, PS Special Cell 8/38 deposed that their cars were standing under the pulia near Gurudwara and did not know when other members of the raiding party reached the office. He deposed that ASI Ram Kishan met him in the morning of the next day after leaving the spot.
17. PW1 further deposed in his cross-examination that he recorded DD no.17 at about 11:30pm after going back to the office but did not know who took the accused for medical examination and who produced them before the Court on 10.07.2007. He deposed that on 10.07.2007 at about 6:15pm, he (PW1) along with ASI Ram Kishan, HC Bijender and Ct Anil Kumar left for Bhagalpur, Bihar in a private car, number of which he did not remember. He deposed that DD Entry regarding departure was made but could not remember whether the registration number of the car was mentioned or not. He deposed that it was an Indica Car and the same was arranged by IO ASI Ram Kishan and was driven by HC Bijender.
18. PW1 further deposed that they did not take any assistance from the local PS at Bhagalpur Bihar and did not lodge any DD entry in local PS at Bhagalpur Bihar. No DD Entry was made in the local PS Bhagalpur Bihar even while coming back. He deposed that accused did not point out any specific place in Bihar and he simply revealed that they used to receive notes near the Railway Station. He deposed that they did not try to take assistance from public persons for locating the person from whom the accused used to receive notes. He deposed that they reached Delhi from Bhagalpur Bihar at about 9-9:30pm on 12.07.2007. He deposed that he was aware about the complaint lodge by the Vivek Choudhary against them regarding false implication but did not know contents of the complaint. He submitted that senior officers had made enquiries from him State vs. Vivek Chaudhary & Kuldeep Grover FIR No. 55/2007, PS Special Cell 9/38 regarding said compliant and that his statement was recorded in that enquiry. He deposed that he did not obtain the call details record of mobile phone of Vivek Choudhary.
19. PW1 further deposed denied that he made a call on 09.07.2007 from his mobile no. 9818542547 at 6:53pm when he was at Dhola Bagpat. He deposed that he was not using mobile no. 9811488499 but voluntarily deposed that the informer was using it. He denied the suggestion that he was using mobile no. 9310962002 on 09.07.2007 when he was at Parta Pur, Mukampur, Budbadal Meerut at 4:30pm and at Parta Pur Industrial Area at 4:45pm and Gobin Pur, Modi Nagar at 6pm. He did not remember the time when handed over his mobile phone to informer on 09.07.2007 and deposed that the informer had returned the same on 10.07.2007 but could not remember the time. He deposed that another team comprising SI Dinesh Pal and other police officers whose name he could not remember, was using his mobile phone no. 9310962002 when they had gone somewhere in UP West on 09.07.2007.
20. PW1 further deposed in his cross-examination that the informer remained present at the spot from 4:15pm to 4:55 pm and during that period he was using his mobile and that he did not claim any TA / ADA after return from Bhagalpur Bihar. No assistance was taken from local police of Khichri Pur area regarding raid. He further deposed that he along with HC Bijender, Ct Anil, IO ASI Ram Kishan and accused Vivek Choudhary had gone to Saharan Pur in a private vehicle whose registration number he did not remember but deposed that it was the same vehicle used earlier. He deposed that no DD entry was made regarding arrival at local PS Saharanpur. He deposed that IO had made departure entry before leaving the PS but did not remember its contents. He could State vs. Vivek Chaudhary & Kuldeep Grover FIR No. 55/2007, PS Special Cell 10/38 not remember whether it was mentioned in the DD Entry that they would go to Muzaffarnagar from Saharanpur. He did not claim any TA / DA upon return from Saharan Pur. No DD entry was made regarding their arrival in local the PS at Muzaffar Nagar.
21. PW1 further deposed in his cross-examination that Vivek Choudhary had not disclosed about the address of Rafiq at Saharanpur in his disclosure statement but they had gone to Muzaffarnagar at Village Mundbpur in search of one S.P.S Singh whose name was disclosed by Vivek Choudhary. He deposed that the accused did not point out any particular house. He denied the suggestion that they never took the accused to Bhagalpur, Saharanpur and Muzaffarnagar. He deposed that he was not using any mobile phone when accused Vivek Choudhary was taken by them to Bhagalpur, Sharanpur and Muzaffarnagar. He could not remember whether he was using mobile number 9310962002 on 08.07.2007 and 09.07.2007 or that he had made various calls from the same. He could not remember whether at 7:30am he was in Vaishali Gaziabad and using the said phone. Rest of the cross-examination of this witness is in the form of suggestions which he denied.
22. PW6 HC Joginder Singh in his cross examination deposed that the informer was present in the office of Insp. Badrish Dutt where he was called on intercom and other members of the raid were also present there. He deposed that he was not carrying any arms and ammunition when he left the office. He had a mobile phone which he taken to the spot, number of which he could not remember. The mobile phone had been provided to him by Insp. Badrish Dutt at that time before leaving the office and he had no idea whether it was personal or official number of Insp. Badrish Dutt. He deposed that at that time, he himself was not having any State vs. Vivek Chaudhary & Kuldeep Grover FIR No. 55/2007, PS Special Cell 11/38 personal mobile phone. He returned the mobile phone to Insp. Badrish Dutt on next day. He deposed that he did not use the said mobile phone on that day or till it return nor any phone call was received. He deposed that he was given that mobile phone by Insp. Badrish Dutt to use in case of need. He deposed that two private cars used were Wagon-R and Matiz. Wagon-R belonged to SI A.K. Singh but he could remember whether the registration numbers of both these cars were mentioned in the departure entry or in other record. He deposed that he was sitting in the Wagon-R car with Insp. Badrish Dutt and secret informer which was being driven by SI A.K. Singh. He could not remember who was driving the other car.
23. PW6 HC Joginder Singh further deposed in his cross examination that both the cars were parked in front of Gurudawara and no person from the Gurudawara was requested to join the raiding party. He deposed that SI A.K. Singh had requested 4-5 public persons to join the raiding party but no notice was given to them for refusal. He deposed that he and HC Bijender were standing on the Mayur Vihar side after bridge whereas Insp. Badrish Dutt, SI A.K. Singh, secret informer and Ct Naresh were standing on Gazipur side bridge while HC Nirdesh and HC Karan Singh were standing under the bridge. He could not remember whether there were two bus stands on the either side of the pulia. He deposed that they left the spot at about 2:30am. He deposed that accused persons were standing outside the car when they were apprehended. He deposed that both the accused persons were apprehended with the help of all the members of the raiding party but did not know whether the accused persons were informed about secret information before conducting their search. He could not remember whether personal search of accused Vivek Chaudhary was effected prior to search of his bag.
State vs. Vivek Chaudhary & Kuldeep Grover FIR No. 55/2007, PS Special Cell 12/38
24. PW6 HC Joginder Singh further deposed in his cross examination that SI A.K. Singh conducted the search of accused Vivek Chaudhary and thereafter he conducted the personal search of accused Kuldeep Grover. He could not remember whether the packets recovered from accused Kuldeep Grover were tied with a rubber band or not. He deposed that all the eight packets were in same bundle and each packet was tied with separate rubber bands. He could not remember what notings were done on the doctor tape on each packet. He could not remember whether the signature of the accused persons or witnesses were taken on doctor tape on each packet. He could not remember whether all the ten pullandas were converted into one single cloth pullanda or not. He deposed that the rexine bag and newspaper were not sealed. He deposed that the notes were counted by SI A.K. Singh but could not remember in whose writing Ex.PW1/D1 to D8 and Ex.PW1/E1 to E2 were prepared. He deposed that he was present when these documents were prepared but he could not remember whether the FIR number was filled on the exhibits in his presence or not. He could not remember who filled up FIR number. He had seen case property in the Court which had details of case on the doctor tape but did not know in whose handwriting those details were written. He deposed that all the writing work was done on the side pavement but there was no crowd gathered at the spot and only one or two persons stopped and went away. He deposed that there was road light on the spot but could not remember the position of the electricity pillars.
25. PW6 HC Joginder Singh further deposed in his cross examination that only the rukka was given to Ct Naresh in his presence who had left on a motorcycle. He deposed that ASI Ram Kishan reached the spot on a motorcycle. He could not remember as to who was sitting in which vehicle while going back to the office from the spot. He deposed that State vs. Vivek Chaudhary & Kuldeep Grover FIR No. 55/2007, PS Special Cell 13/38 two cars and one motorcycle left from the spot and firstly they went to police station Special Cell and thereafter to the office. He did not know whether there was any press conference regarding arrest of accused persons. He deposed that no press media took any photograph of the accused persons with him at the time of their arrest. PW6 was confronted with a newspaper Jagran and asked he was in the photograph or not. Witness deposed that the photocopy was not clear and could not say whether he was standing at point A on the photograph Mark PW6/ DA. He deposed that he did not visit Haridwar on 08.07.2007. Rest of the cross- examination is in form of suggestion to which PW6 denied.
26. PW8 Ct Naresh Kumar in his cross-examination deposed that the DD No. 9 was made when he had left the office but did not know whether secret information was mentioned in the DD Entry. He did not know whether the numbers of the private vehicles in which they left for the spot were mentioned in the DD Entry. He deposed that he was deputed at the bridge from Gazipur side with Insp. Badrish Dutt, SI A.K. Singh and informer and were standing together. No one tried to contact any person from the Gurudwara to join the raid where the vehicles were parked. He admitted that there was a bus stand behind the place whether they were standing but did not remember whether the police officials tried to contact any person to join the raiding party. He deposed that SI A.K. Sigh offered his personal search to the accused persons prior to their search but could not remember whether this fact was mentioned in his statement under Section 161 of the Cr.P.C. He did not know whether any police official informed the accused persons about the secret information. He did not know the name of the local police station in whose jurisdiction raid was conducted. He did not know whether signature of accused or any other persons were obtained on the sealed pullanda. He deposed that he went State vs. Vivek Chaudhary & Kuldeep Grover FIR No. 55/2007, PS Special Cell 14/38 to the police station with rukka on the motorcycle of ASI Ram Kishan but could not remember whether he signed on DD Entry in the police station when he reached there. He did not know who was sitting in Matiz and Indica cars when they went back to police station.
27. PW8 further deposed in his cross-examination that they had gone to Bihar by train and on reaching there they straightway went to PS Kotwali where arrival entry was made. He could not remember whether the purpose of visiting Bihar was mentioned in the DD Entry or not. He could not remember whether he signed at PS Kotwali or who made the DD Entry. He deposed that they had searched nearby hotels of PS Kotwali but could not remember name of any hotel other than Gaylord. He was present with the IO when they reached Gaylord Hotel and after seizing the documents from the said Hotel, they came back to PS Kotwali and made departure entry. He could not remember whether the departure entry mentioned seizure of documents. He could not remember at what time they left Gaylord Hotel. He deposed that train by which they came to Delhi was of 01.08.2007 at noon time and they did not stay in Gaylord Hotel even for a short while. He could not remember the exact time when the departure entry was made on 01.08.2007 and could not remember whether it was night, day or afternoon. He deposed that no other proceedings were conducted in Bhagalpur Bihar except the seizure. He deposed that ASI Ram Kishan had visited Bhagalpur Bihar earlier also and that ASI Ram Kishan had contacted him on telephone from Bhagalpur Bihar while reaching Delhi and asked him to reach Safdarjung Hospital to conduct medical of the Vivek Choudhary. He could not remember whether any DD Entry was made at PS Special Cell regarding going to and coming back from Safdarjung Hospital. Rest of cross-examination of PW8 is in the form of suggestions which he denied.
State vs. Vivek Chaudhary & Kuldeep Grover FIR No. 55/2007, PS Special Cell 15/38
28. PW2 is ASI Rohtash Singh who was posted as duty officer on 09.07.2007. He deposed that had received a rukka at 10.45pm through Ct Naresh Kumar with endorsement of SI A.K. Singh and recorded the FIR Ex.PW2/A on the basis of the same. He deposed that investigation of the case was assigned to ASI Ram Kishan to whom FIR and rukka was sent by him through Ct Naresh Kumar and proved his endorsement on the rukka as Ex.PW2/B. In cross examination, PW2 deposed that the FIR was given to Ct Naresh Kumar at about 1.15am. He deposed that ACP Special Cell decides as to who would continue with the investigation after registration of the FIR but there was no written instruction of the ACP to handover investigation to ASI Ram Kishan. Voluntarily, he deposed that it was mentioned in the rukka that the investigation was to be assigned to ASI Ram Kishan but he himself did not convey the said information to him. Rest of cross examination in the form of suggestions which he denied.
29. PW3 is Amit Goel registered owner of Indica Car no. HR-99- ACHQ-7726. He deposed that Himanshu Goel (PW4) was his cousin who was running a Travel Agency and he had given the said car on rental basis to Himanshu Goel. He deposed that Kuldeep Grover was the driver of the car who he identified in the court. He deposed that on 09.07.2007 Himanshu Goel had informed him on phone that his car had been booked by Vivek Chaudhary for Shamli and Meerut and that Kuldeep Grover was driving the said car and they would return in the evening. He deposed that on 10.07.2007, he had gone out of station and therefore could not contact Himanshu Goel and he returned on 11.07.2007 on which date Himanshu Goel told him that his car has been seized by the Delhi Police with FICN and that Vivek Chaudhary and Kuldeep Chaudhary had been apprehended by Delhi Police. He deposed that he along with Himanshu State vs. Vivek Chaudhary & Kuldeep Grover FIR No. 55/2007, PS Special Cell 16/38 Goel came to Delhi and met the IO who recorded his statement and car was released to him on superdari under order of the Court. He had brought the said vehicle to the Court which was exhibited as Ex.P6. In cross examination PW3 deposed that he had purchased the said vehicle on 07.05.2007 and that Kuldeep Grover had been employed by him as after one month of its purchase. He deposed that on 11.07.2007, he had made inquiry from Himanshu Goel about the car and that Himanshu Goel told him that on 09.07.2007 he had made a telephonic call to Kuldeep Grover to find out their location and Kuldeep Grover told Himanshu Goel that they were in Meerut. He deposed that said call had been made to Kuldeep Gover between 4to 5pm on 09.07.2007. He further deposed that thereafter a phone of Kuldeep Grover was not reachable. He could not remember the name of the official who had recorded his statement.
30. PW4 is Himanshu Goel who deposed that he runs a Travel Agency and that the Indica Car no. HR-99-ACHQ-7726 belonged to his cousin Amit Goel (PW3) who had rented out the car to him to be run in the said Travel Agency. He deposed that he had employed Kuldeep Grover a driver who he identified in the Court. He deposed that Vivek Chaudhary was his neighbour and he booked the car on 08.07.2007 for Shamli and Meerut for 09.07.2007 for the same day to and fro. He deposed that on 09.07.2007 he contacted Kuldeep Grover on telephone at about 4pm who told him that he was in Meerut but the car did not return till night. He tried to contact Kuldeep Grover but his phone was not reachable. He contacted the residence of Vivek and was informed that they would be returning by tomorrow (next day). He tried to contact Kuldeep on 10.07.2007 but his phone was not reachable. He deposed that through news clippings, he came to know that his car has been seized by the Delhi Police with FICN and that Vivek Chaudhary and Kuldeep had also been arrested. He State vs. Vivek Chaudhary & Kuldeep Grover FIR No. 55/2007, PS Special Cell 17/38 deposed that he had come to Delhi with Amit Goel and that IO had recorded his statement. In cross examination, PW4 admitted that Vivek Chaudhary had called him in the early morning to confirm about booking of the car and that said call has been received by him at his mobile no. 9897283596. He did not know the mobile number of Kuldeep but now he was aware that mobile number of Vivek Chaudhary was 9412025928. He could not say whether mobile number of Kuldeep was 9358146814. He deposed that Kuldeep Grover had told him on 09.07.2007 that he was at Meerut when he (PW2) had called him at 3:46pm from his mobile number 9897283596. He deposed that when the car did not return, he tried to make inquiries on the night of 09.07.2007 and on 10.07.2007 but the phone of Kuldeep Grover was not reachable. Rest of the cross examination is in the form of suggestions which he denied.
31. PW7 is SI Bhim Sen who was posted in PS Special Cell, New Friends Colony. He deposed that SI K.P Rana handed over an authority letter to him with outstation permission he went to the Currency Notes Press, Nasik Road and collected their opinion in a sealed cover with the sealed case property and returned to Delhi on 28.10.2007. He deposed that he had handed over the case property ASI Paramjeet Singh, MHCM and opinion to SI K.P. Rana. He deposed that he recorded his statement on 29.10.2007 and that the case property and opinion were not tampered with as long it remained in his custody. In cross examination, he deposed that he had not signed malkhana register at the time of deposit of case property after collecting the same from Nasik.
32. PW9 is Ranjeet Tiwari who was working as Manager in Hotel Gaylord, Station Chowk, Bhagalpur, Bihar. He deposed in his examination in chief that he could not remember date and month but two police officials State vs. Vivek Chaudhary & Kuldeep Grover FIR No. 55/2007, PS Special Cell 18/38 came to him and asked him about the stay of Vivek Chaudhary. He deposed that he checked the Hotel Booking Register and sent a photocopy of the same by post to police after it was attested by him. He saw the photocopy of the register which has already been exhibited as Ex.PW5/I and deposed that it was the same photocopy which had been sent to the police after attested by him. He had identified his signature at point B and deposed that entry at serial no. 938 had been made in the name of Vivek Chaudhary. He deposed that as per register the customer had arrived at the hotel on 14.06.2007 and left on 15.06.2007. The seizure memo of register was already exhibited as Ex.PW5/J on which he identified his signature at point B.
33. In cross examination, PW9 Ranjeet Tiwari deposed that he could sign in Hindi as well as in English. He deposed that he had not brought the original Booking Register of the Hotel. He deposed that he was not present in the Hotel at the time of arrival or departure of one Vivek Chaudhary in the Hotel. He admitted that Vivek Chaudhary did not make any entry in the register in his presence. He admitted that only two police officials had come for investigation at their hotel and no other person accompanied them. He deposed that he got the register photocopied and sent the same by post to the police. He deposed that the police officials remained in their hotel for one day during the investigation but could not remember whether any entry in that regard was made. He deposed that police reached at about 1:30 to 2pm and left the hotel at about 10am in next morning. He deposed that local police officials did not accompany the Delhi police officials nor he had received any phone call regarding their arrival from local police. He denied the suggestion that he was not working as a Manager in the said Hotel at the material time. He deposed that no document regarding his employment in the Hotel was demanded by the State vs. Vivek Chaudhary & Kuldeep Grover FIR No. 55/2007, PS Special Cell 19/38 police officials. He however admitted that attendance register of the employees was used to be maintained by the 'In charge'. He deposed that police officials neither demanded the copy of attendance register nor of the bill book. Rest of the cross-examination of PW9 was in the form of suggestions which he denied.
34. No witness was examined from the Currency Notes Press, Nasik Road, Mumbai. However, its report was tendered as Ex.PA by Ms. Neeta Gupta, the then Ld. Addl. PP for the State on 10.01.2011.
35. PW5 is ASI Ram Kishan. In his examination in chief, he deposed that on 09.07.2007 at about 9pm, he was present in PS Special Cell, New Friends Colony when duty officer informed him that he had been directed to reach the spot of apprehension and when he reached there, he met SI A.K. Singh who was writing rukka, alongwith other police staff. He deposed that after five minutes of his reaching there he handed over the rukka to Ct Naresh Kumar who had left the spot with the same. He deposed that SI A.K. Singh handed over the documents and the case property to him along with the custody of the accused Vivek Chaudhary and Kuldeep Grover who he identified correctly in Court. He deposed that he prepared the site plan Ex.PW5/A after inspection of the site recorded the statements of SI A.K. Singh and HC Jogender Singh, interrogated and arrested the accused Vivek Chaudhary vide arrest memo Ex.PW5/B and conducted his personal search vide memo Ex.PW5/C and recorded his disclosure statement vide Ex.PW5/D. He further deposed that he interrogated and arrested the accused Kuldeep Grover vide arrest memo Ex.PW5/E, conducted his personal search vide memo Ex.PW5/F and recorded his disclosure statement of the accused Ex.PW5/G. He deposed that he seized the Indica Car No. HR99AC HQ 7726 vide seizure memo State vs. Vivek Chaudhary & Kuldeep Grover FIR No. 55/2007, PS Special Cell 20/38 Ex.PW5/H. He deposed that Ct. Naresh Kumar returned to the spot and handed over the copy of the FIR and original rukka and he thereafter filled in the FIR number in the said memos. He deposed that he along with police staff left the spot with the case property, Indica car and accused persons, deposited the case property at PS Special Cell Lodhi Colony and reached the office at Special Cell, New Friends Colony.
36. PW5 further deposed in his examination in chief that he informed the relatives of the accused about their arrest; recorded the statements of Ct Naresh Kumar and HC Bijender Singh and supplementary statement of HC Jogender Singh. After getting the accused medically examined, he obtained police custody remand of accused Vivek Chaudhary. He deposed that he along with the accused Vivek Chaudhary, SI A.K. Singh, HC Bijender Singh and Ct Anil left for Bhagalpur, Bihar in a private car where they reached in the evening of 11.07.2007. He deposed that they went there in search of Daud, Tau and Shahnawaz as per the disclosure statement of Vivek Chaudhary and made efforts to look for them but Vivek Chaudhary did not co-operate and misled the police party. He deposed that enquiries were also made from the local persons to no effect and they returned to Delhi and reached late at night on 12.07.2007.
37. PW5 further deposed that in the morning of 13.07.2007, he along with SI A.K. Singh, HC Bijender Singh, Ct Anil and accused Vivek Chaudhary left for Saharanpur in search of Rafiq as per the disclosure statement of Vivek Chaudhary, reached in the afternoon and made efforts to look for Rafiq but noting could be found out about him. He deposed that Vivek Chaudhary upon enquiry stated that he Rafiq had given him a wrong name and address.
State vs. Vivek Chaudhary & Kuldeep Grover FIR No. 55/2007, PS Special Cell 21/38
38. PW5 further deposed that from Saharanpur they left for Muzaffar Nagar in search of S.P. Singh and reached Village Mundbar to look for him but he could not be found. Enquiries were made from four to five local persons about S.P. Singh but they did not know anything. He deposed that then they reached Delhi in late night and on the next day, after medical examination of the accused Vivek Chaudhary, he was produced before the Court from where he was remanded to judicial custody.
39. PW5 further deposed that on 30.07.2007, he along with Ct Naresh Kumar went to Bhagalpur to collect records of Hotel Gaylord regarding the stay of Vivek Chaudhary where they met the manager Ranjeet Tiwari who handed over an attested copy of the hotel register containing details of stay of Vivek Chaudhary in the said hotel at Sr. No. 938 dated 14.06.2007 Ex.PW5/I which was seized by him vide seizure memo Ex.PW5/J. He deposed that he recorded statement of the Manager and Ct Naresh Kumar and on 31.08.207 he handed over the case file to Insp. Badrish Dutt on his transfer.
40. PW5 was cross-examined by the counsel for the accused persons. In cross-examination PW5 deposed that he could not remember whether on 08.07.2007 he went to Haridawar. Voluntarily, he deposed that he was out of station but could not remember where he had gone. He deposed that on 09.07.2007 at about 9pm, he was given information to reach the spot by duty officer who name he could not remember. He deposed that he was called by the Duty Officer who had recorded entry in the daily diary and signed on the same. He deposed that he had recorded DD no. 13 and left the office on his private motorcycle bearing registration State vs. Vivek Chaudhary & Kuldeep Grover FIR No. 55/2007, PS Special Cell 22/38 no. DL-5SN-8184. He deposed that duty officer had received the information from Insp Badrish Dutt but could not remember the mode of receipt of information. He deposed that he reached the spot at about 9:55pm where SI A.K. Singh, Insp. Badrish Dutt, HC Joginder, Ct Naresh, HC Bijender, HC Nirdesh Kumar and other police official whose name he could not remember, met him. He deposed that SI A.K. Singh was writing the rukka and other police official were holding the custody of the accused persons but could not remember as to who was holding which accused. He deposed that SI A.K. Singh left the spot in private car at about 11pm and Ct Naresh went to the police station on his motorcycle with the rukka and returned to the spot at about 2:15am. He deposed that all the writing work was done by him while sitting on the footpath in the street light which was installed on the mid path on the road. He deposed that the bus stand was at a distance of about 15-20 steps from Khichripur pulia on Ghazipur side but did know about any bus stop on the other side.
41. PW5 in his cross-examination admitted that there was a Gurudwara near pulia which was at a distance of 100 to 150 meters down pulia. He deposed neither he had neither seen any stairs leading from pulia to the Gurudwara nor any police check post at a distance of 100 meters from pulia. He deposed that no efforts were made by him join any public person in the proceedings as it was late at night and public persons were not easily available. He deposed that apart from copy of rukka, seizure memos, pullands, SI A.K. Singh handed over to him ten pullandas of currency notes sealed with the help of cotton tape in transparent polythene. He deposed that notings were on the cotton tape in pen but he could not remember the colour of the ink or whether the pullandas had the signatures of the accused persons or not. He deposed that notings were under the signature and seal of SI A.K. Singh but could not remember the State vs. Vivek Chaudhary & Kuldeep Grover FIR No. 55/2007, PS Special Cell 23/38 number of seals affixed on one pullanda. He deposed that SI A.K. Singh had handed over him one brown colour rexine bag alongwith newspapers. He admitted that bag was not sealed.
42. PW5 further deposed in his cross-examination that on 09.07.2007 he was present in the office from 2pm to 9pm and he was aware that a raiding party had left the office but was not aware of the purpose. He could not remember whether any senior officer was present when he left the office for the spot. He deposed that at about 2:30pm, the staff left the spot in one private vehicle and in the Indica Car of the accused persons while he left on his motorcycle. He deposed that Insp. Badrish Dutt was driving car which might be a Matiz and HC Bijender was driving an Indica but could not remember who was sitting in which car. He deposed that from the spot first they went to PS Special Cell Lodhi Colony but no arrival entry was made there and after that they went to the office at New Friends Colony at about 4pm of which arrival entry vide DD no. 17 was made by him in the office. He deposed that after getting accused persons medically examined on 10.07.2007, they went to Court and returned to the office at about 5:30pm.
43. PW5 further deposed in his cross-examination that he alongwith SI AK Singh, HC Bijender and Ct Anil and accused Vivek left the office at about 6:15pm for Bhagalpur, Bihar in a private Indica car whose registration number he could not remember. He deposed that he did not know the owner of the said vehicle but deposed that the same was arranged by Insp. Badrish Dutt. He deposed that they reached there at 7pm on 11.07.2007 but they did not make any DD entry in the local police station of Bhagalpur Bihar. He deposed that he asked the accused to contact Daud, Shahnawaz and Tau or to call them but he told hm that he State vs. Vivek Chaudhary & Kuldeep Grover FIR No. 55/2007, PS Special Cell 24/38 used to meet him at Station Chowk and that he was not having any contact number or their addresses. He admitted that Vivek Chaudhary did not give any phone number or address in his disclosure statement. He deposed that he also made inquiries from the shop keepers, locals and passersby about the above mentioned persons but did not record their names and addresses. He deposed that when he did not get any clue they left Bhagalpur for Delhi and before leaving, he gave his phone number to 4-5 local shop keepers to inform him if they got any information and that they would be rewarded. He deposed that they left Bhagalpur at about 9pm and reached Delhi at about 10:30pm on 12.07.2007.
44. PW5 in his cross-examination further deposed that on 13.07.2007, the same team left for Sharanpur and Muzaffar Nagar in the same vehicle of which departure entry was made but could not remember whether he mentioned about Muzaffar Nagar in the same or not. He deposed that he was not carrying any mobile number when they left for Saharanpur. He deposed that neither any arrival entry was made in local police stations at Sharanpur and Muzaffar Nagar nor any police assistance was sought from the said two local police stations. He deposed that inquiries were made from locals from Sharanpur but nothing could be found out about them. He deposed that no enquiries were made from the Pradhan as he was not available.
45. PW5 in his cross-examination further deposed that they went to Muzaffar Nagar in search of S.P. Singh @ Sahendar Pal and came back straight to the office and on the next day i.e. 14.07.2007 accused was got medically examined. He deposed that he had moved an application for grant of outstation permission before the ACP which was allowed. In answer to a specific question deposed that he had no knowledge whether State vs. Vivek Chaudhary & Kuldeep Grover FIR No. 55/2007, PS Special Cell 25/38 any officer namely Ranjeet Singh Chauhan, SB Intelligence, Dehradun, Uttrakhand came to meet accused Vivek Chaudhary. He deposed that he had not collected the call detail records of mobile phone of Vivek Chaudhary. In answer to another specific question, he deposed that at no police officer or other officers of UP or Uttrakhand told him that activities of accused Vivek Chaudhary were under surveillance at any point of time.
46. PW5 further deposed in his cross-examination that after his transfer, he came to know that the accused Vivek Chaudhary had moved some a writ petition before the Hon'ble High Court for transfer of investigation. He deposed that on 31.07.2007, he made inquiries in many hotels including hotel Gaylord and local police officials of PS Kotwali Bhagalpur and made his arrival entry and on 01.08.2007 made a departure entry but the local police did not allow him to write in the roznamcha himself. He deposed that they stayed in hotel Gaylord on the request of incharge of PS Kotwali. He deposed that he came to know that arrangements were made in hotel Gaylord for their stay only at that time but before that he had already seized the record. He deposed that he had not made any entry in register of Hotel Gaylord and that no pointing out memo of Station Chowk was prepared by him where accused Vivek Chaudhary used to meet the persons disclosed by him. He deposed that he did not visit Muzaffar Nagar for the second time and had not claimed TA or DA when he visited Bhagalpur, Shahranpur and Muzaffar Nagar. He deposed that he was given Rs.15,000/- cash by Insp. Badrish Dutt for the same from a secret fund. Rest of the cross-examination of PW5 is in the form of suggestions which he denied.
47. PW5 ASI Ram Kishan was permitted to be further cross examined on an application moved by the accused under Section 311 State vs. Vivek Chaudhary & Kuldeep Grover FIR No. 55/2007, PS Special Cell 26/38 Cr.P.C. which had been allowed vide order dated 05.01.2015. PW5 was further cross examined on 27.01.2012 in which he admitted that HC Karan Singh was one of the team members who went to get conducted the medical examination of Vivek Chaudhary on 10.07.2007. He also admitted that he was not aware of the mobile phone numbers of Rafiq, Dawood and Shahnawaz nor the same was supplied to him during investigation. He deposed he had made departure entry at PS Kotwali Bhagalpur on 01.08.2007 but did not mention about the seizure of documents in the same. He deposed that he had made his arrival entry at PS Kotwali at Bhagalpur, Bihar and mentioned the reason which was for investigation. PW5 further deposed that SI A.K. Singh did not hand over any impression of specimen seal used by him. He denied the suggestion that on 11.07.2007, one Insp. Ranjeet Singh Chauhan of SB Intelligence, Uttrakhand came to office of Special Cell, New Friends Colony and met Vivek Chaudhary in between 12-1pm. He deposed that he had not sent the specimen handwriting of accused persons for comparison to the FSL as he was transferred from Special Cell to PCR. He deposed that he had not sent the FICN to Government Press Nasik but wrote a letter for obtaining priority letter whose date he could not remember.
48. PW5 further deposed in his cross-examination that he could not remember whether Print or Electronic Media had clicked photographs of the accused after their arrest or any time during investigation. He deposed that he had deposited the case property at about 3-3.30am in the intervening night of 9/10.07.2007. PW5 admitted that the newspaper Dainik Jagran, Hindi Version edition dated 11.07.2007 Mark PW5/DA, had photographs of HC Nirdesh, SI A.K. Singh, HC Joginder Singh at serial no.1 to 3 displaying the recovered FICN. He denied the suggestion that S.P. Singh was an informer and because of the same he had not arrested State vs. Vivek Chaudhary & Kuldeep Grover FIR No. 55/2007, PS Special Cell 27/38 SP Singh nor arraigned him as a co-accused in order project the present case as genuine.
49. Arguments were addressed by the Ld. counsel for the accused persons as well as by the Ld. Addl. PP for the State. In addition, counsel for the accused filed written submissions. I have heard counsel for the accused and Ld. Addl. PP for the State and have carefully gone through the written submissions filed by the accused persons.
50. On behalf of the accused persons, it was submitted that DD No. 9 which was stated to be written by Insp. Badrish Dutt was not exhibited and nor was its author Insp. Badrish Dutt examined as a witness. It was submitted that the secret information was never brought to the notice of senior police officers. It was submitted that despite a Govt. vehicle being available, the officers of Special Cell did not use the same and on the other hand used private vehicles without disclosing its details in the daily diary while leaving the police station. Statements of the owners of these private vehicles were not recorded. It was submitted that the members of the police team which apprehended the accused persons deliberately did not take any assistance of the local police and also did not join any private person with the proceedings conducted by him at the spot. It was submitted that the secret informer had gone to the spot but was not examined as a witness.
51. It was further submitted that as per the prosecution the FICN was deposited in the malkhana on 10.07.2007 at 3:30am and sent to the Currency Notes Press Nasik Road by letter dated 30.07.2007 and thereafter deposited in the malkhana on 28.10.2007. However, photographs of members of the raiding party had been clicked with Media State vs. Vivek Chaudhary & Kuldeep Grover FIR No. 55/2007, PS Special Cell 28/38 persons in the day time on 10.07.2007 and was published in Dainik Jagran edition dated 11.07.2007. There is no evidence that the FICN was taken out from the malkhana as there is no statement of the MHCM to this effect but PW5 ASI Ram Kishan had admitted the photographs which were published. It was submitted that the FIR no. has been entered on all the documents with the same handwriting and same pen prior to registration of the FIR. It was submitted that as per the prosecution the IO with other police officers had gone for investigation with the accused Vivek Chaudhary to Bhagalpur Bihar, Sharanpur and Muzaffarnagar but there is no evidence that they had visited the said places. No DD entry of any local police station was produced in this regard. It was submitted that as per the disclosure statement of Vivek Chaudhary he could have identified the hotels where he stayed in Bhagalpur but no particular hotel at Bhagalpur was located or identified when the IO went to Bhagalpur for the first time on 11.07.2007. The IO again went to Bhagalpur on 30.07.2007 without Vivek Chaudhary and this time he was able to identify hotel Gaylord but it has not been explained as to how the IO discovered the name of hotel Gaylord. In this regard it was further submitted that while ASI Ram Kishan PW5 had deposed that the Manager of the said Hotel had handed over copy of the register to him at Bhagalpur, PW9 the Manager of the said hotel had deposed that he had sent the same by post. It was further submitted that although as per the prosecution Vivek Chaudhary had also revealed the name of one Amir, no efforts were made by the IO to trace the said person.
52. It was further submitted that as per the prosecution the samples of handwriting and fingerprints of Vivek Chaudhary were obtained after taking permission of the Court for comparison with the entries in the hotel register at Bhagalpur but no such opinion was obtained. It was State vs. Vivek Chaudhary & Kuldeep Grover FIR No. 55/2007, PS Special Cell 29/38 submitted that all the members of the police team had given evasive replies to the questions put in cross-examination regarding their locations and mobile numbers. It was further submitted that the FICN had been sent to Currency Notes Nasik after delay of 50 days and no witness was examined to prove as to how the seized FICN were sent to the said authority. No road certificate in respect of the same was brought on record or proved. In this regard it was further submitted that neither the sample seal 'AKS' nor the list of the FICN were sent to the said authority with FICN. It was submitted that as per DD no.9 members of the police team were carrying arms and ammunition with them when they proceeded for the spot but none of witnesses could state as to who was carrying arms. It was lastly submitted that the fact that the prosecution itself moved an application under Section 311 of the Cr.P.C. to examine additional witnesses which though was allowed by the Ld. Predecessor of this Court but was set aside by the Hon'ble High Court and also declined by the Hon'ble Supreme Court revealed that there were lacunae in the case of the prosecution.
53. After considering the submissions of the Ld. Counsel for the accused and Ld. Addl. PP for the State, my findings are as under.
54. As per the prosecution, DD no. 9 PS Special Cell/SR/OC dated 09.07.2007 was recorded by Insp. Badrish Dutt. Insp. Badrish Dutt was not examined as a witness by the prosecution. DD no.9 was not exhibited in evidence. PW1 in his cross-examination deposed that the secret information was shared by Insp. Badrish Dutt to ACP Special Cell K.K. Kaushik but DD no. 9 does not record the name of K.K. Kaushik. The said DD records that a police team constituted by Insp. Badrish Dutt left the office of Special Cell with official weapons through private cars. No State vs. Vivek Chaudhary & Kuldeep Grover FIR No. 55/2007, PS Special Cell 30/38 details of the private cars used are mentioned in the same. PW1, PW6 and PW8 who were members of the police team were examined as witnesses. PW1 deposed that one private vehicle used by him was a Wagon-R bearing registration no. DL-3CZ-1760 but he was not owner of the same. The other car used was a Matiz supposed to be belonging to Insp. Badrish Dutt but he could not remember its registration number. He deposed that he did not claim any reimbursement for having used the said vehicle. He deposed that Insp. Badrish Dutt, HC Jogender and informer were sitting in his car but he could not remember who was driving the Matiz vehicle. PW6 could not remember who was sitting in the Matiz vehicle. PW6 and PW8 could not remember whether the registration numbers of the two private vehicles were mentioned in the DD entry or not. Even PW8 did not know who was sitting in the Matiz vehicle.
55. PW1, PW6 and PW8 all admitted that there were members of the public available at the spot when the proceedings relating to the apprehension of the accused and recoveries were effected but no member of the public joined in the proceedings. PW1 admitted that he did not take any action against the members of the public for not joining the raiding party. No notice was given any of them. He also deposed that no public persons gathered at the spot when both the accused were apprehended even though they put up minor resistance. All three admitted that no assistance of the local jurisdictional police station was taken in the proceedings.
56. PW1 could not remember whether there was any bus stop near the place of apprehension. PW6 could not remember whether there were two bus stops on either side of the pulia at the spot of apprehension. PW8 however deposed that there was a bus stop behind the place of State vs. Vivek Chaudhary & Kuldeep Grover FIR No. 55/2007, PS Special Cell 31/38 apprehension of the accused persons at the spot. PW1, PW6 and PW8 had deposed that the police vehicles were parked near the Gurudwara at the spot of apprehension but no person from the Gurudwara was tried to be associated in the proceedings of apprehension and recovery.
57. Ex.PW1/D1 to Ex.PW1/D8 were the eight sheets containing the serial numbers of the FICN recovered from Vivek Chaudhary. As per the said document the same were prepared by SI A.K. Singh PW1 and had the signatures of PW6 HC Jogender Singh. However, PW6 HC Jogender Singh in cross-examination could not remember in whose handwriting they were prepared even though he was witness to the same.
58. Ex.PW1/E1 to Ex.PW1/E2 were the two sheets containing the serial numbers of the FICN recovered from Kuldeep Grover. As per the said document the same were prepared by SI A.K. Singh PW1 and had the signatures of PW6 HC Jogender Singh. Once again PW6 HC Jogender Singh in cross-examination could not remember in whose handwriting they were prepared even though he was witness to the same.
59. Ex.PW5/D is the disclosure statement of Vivek Chaudhary. In the same Vivek Chaudhary is alleged to have stated that he was a constable in Uttrakhand Police and was posted in the Intelligence Wing at Dehradun. He has stated that he had met an associate S.P. Singh who had introduced him to Rafiq of Sharanpur and came to know that the latter was involved in trafficking of FICN which was supplied by Tau, Daud and Shahnawaz who were from Bihar. That in March, 2007 he had gone to Bhagalpur with Rafiq and stayed at a hotel where he met Daud, Shahnawaz and Tau. He again went to Bhagalpur in May, 2007 and stayed in a hotel and met these three persons and obtained FICN and sold State vs. Vivek Chaudhary & Kuldeep Grover FIR No. 55/2007, PS Special Cell 32/38 the same with Rafiq. In June 2007 he purchased FICN from these three persons in Bhagalpur. He had also gone to Bhagalpur with S.P. Singh to purchase FICN. He also disclosed that he associated Kuldeep Grover with his deeds and was coming to Delhi in the vehilce HR-99-AC-HQ-7723 of Kuldeep Grover to handover the FICN to his associate Amir at Kichripur Bridge. He disclosed that he could get his associates Daud, Tau and Shehnawaz at Bhagalpur arrested and could point out the hotels where he stayed and could also get Rafiq apprehended from his hideouts in Shahranpur and Amir apprehended from his Okhla and Jama Masjid hideouts.
60. As per the prosecution, on 10.07.2007 PW5 ASI Ram Kishan took Vivek Chaudhary alongwith PW1 A.K. Singh, HC Bijender and Ct Anil to Bhagalpur Bihar in a private car where they reached in the evening of 11.07.2007. Neither PW1 nor PW5 could remember the registration number of the said car. PW5 deposed that the car had been arranged by Insp. Badrish Dutt but he did not know the owner of the said vehicle. Both PW1 and PW5 deposed that they did not make any DD entry in the local police station at Bhagalpur either in respect of their arrival or departure to and from Bhagalpur. There is therefore no record produced by the prosecution that they ever went to Bhagalpur between 10.07.2007 to 11.07.2007. The mode of transport used has also not been established. As per PW1 and PW5, Vivek Chaudhary did not point out any particular hotel at Bhagalpur.
61. As per the prosecution on 13.07.2007 the same police officials left with Vivek Chaudhary for Sharanpur and Muzaffarnagar. Both PW1 and PW5 have deposed that they did not make any DD entries at any of the local police stations at Sharanpur and Muzaffarnagar. There is State vs. Vivek Chaudhary & Kuldeep Grover FIR No. 55/2007, PS Special Cell 33/38 again no record to the effect that the police team ever went to Sharanpur and Muzaffarnagar with Vivek Chaudhary. PW1 could not remember the registration number of the private vehicle used to go to Sharanpur and Muzaffarnagar but deposed that it was the same vehicle used earlier. The mode of transport used by the police team for investigation at Sharanpur and Muzaffarnagar has not been established.
62. As per the prosecution PW5 ASI Ram Kishan had gone to Bhagalpur for the second time on 30.07.2007 with Ct Naresh Kumar to collect records of hotel Gaylord. As per Ex.PW5/I, hotel register of hotel Gaylord, Bhagalpur, Vivek Chaudhary had stayed in the said hotel on 14.06.2007. There is no explanation as to how the name of hotel Gaylord at Bhagalpur had surfaced. As per PW5 he seized an attested copy of hotel register vide Ex.PW5/J which was given to him by the Manager of the hotel. In cross-examination he deposed that on 31.07.2007, he had made enquiries from many hotels including hotel Gaylord and from local police officials of PS Kotwali, Bhagalpur. He deposed that they had stayed in hotel Gaylord on the request of In-charge of PS Kotwali, Bhagalpur but did not make any entry in the register of the said hotel. He deposed that he had already seized the record of the said hotel and it was only subsequently that he came to know that their stay had been arranged in the same hotel.
63. PW8 Ct Naresh had also accompanied PW5 in his second visit of Bhagalpur. In cross-examination, he deposed that they had searched several hotels near PS Kotwali Bhagapur but could remember only the name of hotel Gaylord. He deposed that they did not stay in hotel Gaylord and straightway went to PS Kotwali to record their departure. He could not remember at what time the departure entry was made, i.e. State vs. Vivek Chaudhary & Kuldeep Grover FIR No. 55/2007, PS Special Cell 34/38 whether in the day or in the night.
64. PW9 Ranjit Tiwari was the Manager of hotel Gaylord. He deposed that two police officials had come to him asking him about the stay of Vivek Chaudhary in the said hotel. He deposed that he had sent a photocopy of the Hotel Booking Register to the police by post which he identified as Ex.PW5/I. In cross-examination, he admitted that he had not brought the original booking register and that he was not present in the hotel at the time of arrival or departure of Vivek Chaudhary. He further deposed that he had sent the photocopy of the register by post to the police who stayed in the hotel for one day.
65. The depositions of PW5, PW8 and PW9 regarding the second visit of the police to Bhagalpur are mired in contradictions. PW5 and PW8 could remember the name of only Hotel Gaylord out of the other hotels they had searched. As per PW5 and PW9 both the police officials stayed for one night in the said hotel whereas PW8 has deposed that they went back immediately after obtaining record of the hotel and did not stay in the said hotel. PW5 has tried to explain his stay in the very same hotel by claiming that he had already obtained the record and later on came to know that the in-charge of PS Kotwali had arranged for their stay in the same hotel. While PW5 and PW8 have claimed that they seized photocopy of the hotel register at Bhagalpur, PW9 has deposed in examination in chief and in cross-examination that he had sent the same by post. These contradictions lead to an inference that PW5 and PW8 either never went to Bhagalpur or simply went there and came back after staying in hotel Gaylord which was arranged by the in-charge of PS Kotwali, Bhagalpur. There is doubt whether they searched or carried out any investigation in any other hotel other than Gaylord as neither could State vs. Vivek Chaudhary & Kuldeep Grover FIR No. 55/2007, PS Special Cell 35/38 remember the name of any other hotel. Incidentally, they also stayed in the same hotel. PW5 tried to explain the same by claiming that it was later on that they came to know about the arrangement of his stay whereas PW8 claimed that he never stayed in the said hotel. The investigation carried out at Bhagalpur at the second instance is also doubtful.
66. Accused Vivek Chaudhary allegedly had disclosed the name of Amir who was his associate at Delhi and staying that Jama Masjid and Okhla but no investigation regarding Amir was carried out by the prosecution.
67. PW5 has admitted the photograph published in Dainik Jagran edition dated 11.07.2007 Mark PW5/DA. The same is the original copy of the edition of the said newspaper and carries a news article regarding the recoveries made in the present case. PW5 in cross-examination admitted that HC Nirdesh, SI A.K. Singh and HC Jogender Singh were seen in the said photograph holding and displaying the FICN. This photograph appears to be taken in the day time. It has been argued by counsel for the accused that the seized FICN was deposited in the malkhana on 10.07.2007 at 3:30am and sent to the Currency Notes Press Nasik Road by letter dated 30.07.2007 and thereafter deposited in the malkhana on 28.10.2007. However, I have not been able to trace out the details of the malkhana register in the judicial file. No witness was examined by the prosecution to prove the deposit of the seized FICN in the malkhana, probably for the reason that the contentions of the accused in this regard would have been highlighted.
68. The report of Currency Notes Press Nasik Road was exhibited as Ex.PA and tendered in evidence by the Ld. Addl. PP. The said State vs. Vivek Chaudhary & Kuldeep Grover FIR No. 55/2007, PS Special Cell 36/38 document was admissible in evidence under Section 293 of the Cr.P.C. However, there is no record proved by the prosecution as to how and when the seized FICN were taken from the malkhana to the said authority for examination. No witness has been examined in this regard. No road certificate attesting the sanctity of the seized FICN was brought on record. The prosecution has failed to establish as to how it sent the seized the FICN to the said authority for examination.
69. Several questions were put in cross-examination to PW1, PW5, PW6 and PW8 about their mobile phones which they had in their possession at or about the time of apprehension of the accused persons and carrying out of further investigation. I have already referred to the cross-examination of said witnesses. They have been extremely cagey and evasive about the mobile phones in their possession during that period. The reason for the same may be that several applications had been filed by the Vivek Chaudhary praying for freezing the call detail records of several mobile phone numbers stated to be in the possession of the police officers. The applications had been allowed by orders dated 27.072008 and 13.08.2009. However, despite issuance of notices to the concerned Telecom Companies, no such record was produced by them on the ground that the same had been destroyed as per rules.
70. Even though the said record of these mobile phone numbers were not produced, the demeanor of PW1, PW5, PW6 and PW8 and nature of their evasive answers regarding the same casts does give rise to an inference that they may have been apprehensive that the call detail records of their mobile phones might have disclosed that they were not present at the locations claimed at material times at various stages of the investigation carried out. These evasive answers by PW1, PW5, PW6 and State vs. Vivek Chaudhary & Kuldeep Grover FIR No. 55/2007, PS Special Cell 37/38 PW8 regarding the use of their mobile phones casts a serious doubt about their creditworthiness regarding the entire investigation.
71. For the reasons recorded above, in the opinion of this Court, the prosecution has failed to prove, beyond reasonable doubt, the charges framed against both the accused person Vivek Chaudhary and Kuldeep Grover. Both of the them are therefore acquitted in respect of all the charges framed against them. However, in compliance of the provisions of section 437 A of the Cr. P.C, bail bonds of both the accused person shall remain in force for a period of six months from today.
72. Case file be consigned to record room.
Announced in the open court (REETESH SINGH)
on 27th February, 2015 ASJ-02/FTC, PHC/ND
27.02.2015
State vs. Vivek Chaudhary & Kuldeep Grover
FIR No. 55/2007, PS Special Cell 38/38