Delhi District Court
State vs . State Of Gujrat High Court) on 30 October, 2013
IN THE COURT OF SH. SUDESH KUMAR
ADDL. CHIEF METROPOLITAN MAGISTRATE-01, NEW DELHI DISTRICT:
PATIALA HOUSE COURTS: NEW DELHI
FIR No.: 74/02
POLICE STATION: IGI AIRPORT
U/S: 419/420/468/471/120B IPC & 12 PASSPORT ACT
IN THE MATTER OF
STATE
VS
DALJIT SINGH ETC.
(i) Daljit Singh
S/o. Mr. Bhan Singh,
R/o. Village Kamodha,
PS: Pipali, District Kurukshetra,
Haryana. ... (Already convicted through the
process of plea bargaining on
09.07.2011)
(ii) Sunder Singh
S/o. Mr. Buta Singh
R/o. Village and PO Amupur PS: Nishang
District: Karnal, Haryana. ...(Already declared PO on 04.04.2009)
(iii) Pal Singh
S/o. Mr. Jagram Singh
R/o. T-510, F-28 B2 Baljit Nagar, New Delhi ...(Acquitted)
(iv) Manoj Dahiya
S/o. Mr. Dharam Pal Dahiya
FIR NO.: 74/02 POLICE STATION: IGI Airport
U/S: 419/420/468/471/120B IPC & 12 PASSPORT ACT 1 Of 13
R/o. H. No. 520/C Sector -3,
R. K. Puram, New Delhi. ... (Already discharged on 15.02.2010)
(v) Anthony China
S/o. Mr. Joseph Anthony
R/o. 5/7/403 K. G. Marg,
Near Baroda House, New Delhi. ...(Acquitted)
(vi) Irfan Ali
S/o. Mr. Mumtaz Ali
R/o. 1049 Fatak Ram Kishan Dass Bazar,
Chitli Kabar, Darya Ganj, New Delhi. ... (Acquitted)
(vii) John Thomson
S/o. Mr. Nathan Thomson,
R/o. D-96 Munirka, Near Barat Ghar,
New Delhi. ...(Already declared PO 24.04.2006)
(viii) Mehboob Khan
S/o. Mr. Abdul Aziz,
R/o. 33 Basti Nizamuddin,
New Delhi. ...(Acquitted)
(ix) Dhruv Kumar
S/o. Mr. Ram Avtaar Kashyap
R/o. C/o. Preet Singh, House No. 181
Neb Saray, Near IGNOU University,
Bus Stand, New Delhi. ...(Acquitted)
FIR NO.: 74/02 POLICE STATION: IGI Airport
U/S: 419/420/468/471/120B IPC & 12 PASSPORT ACT 2 Of 13
Date of institution: 30.11.2004
Date of reserving Judgement/Order: 30.10.2013
Date of Pronouncement of Judgement/Order: 30.10.2013
Brief statement of reasons for such decision:
1.The present case was registered on a complaint lodged by Mr. Praveen Misra A-II, Immigration IGI Airport wherein he alleged that on the intervening night of 18/19.02.2002 while he was deputed as Clearing Officer at Departure Wing of immigration at Counter no. 8 one passenger namely Daljit Singh approached him for clearance. On scrutiny of his Indian Passport bearing No. A4229120, the USA Visa affixed on page no. 27 was found to be forged. The accused was intending to go to SFO via London by Flight No. BA 142. On questioning he revealed that he alongwith Mr. Sunder Singh and Pal Singh reached IGI Airport and outside the airport he was introduced by Pal Singh to one Air France staff namely Manoj Dahiya who agreed to facilitate him inside the airport. Manoj Dahiya took him to check in counter of British airways and helped in getting his boarding pass issued and he also filled his embarkation card and asked him to go for immigration check while the said Manoj waited in the transit area. The passenger also pointed out towards Manoj sitting in the transit area. On questioning the said accused admitted that he had facilitated the passenger Daljeet Singh at checking counter in getting boarding passed issued, filling his embarkation card and getting the currency encashed. He also revealed that he facilitated the pax at the instance of Mr. Pal Singh who is related to him and Pal Singh and another person namely Sunder Singh are standing outside the Airport. On this both the said persons were located with the help of Manoj Dahiya and intercepted outside airport. Sunder Singh was questioned and he revealed that he had arranged US visa for the passenger through one agent namely Anthony China against an amount of Rs. 8 lac. Accused Pal Singh was also questioned who revealed that Sunder Singh had sought his help to facilitate the passenger inside the airport through his contact Mr. Manoj Dahiya and he came to airport alongwith Sunder Singh and introduced the passenger to Manoj Dahiya. The travel documents were taken into possession by him. Thereafter the investigation FIR NO.: 74/02 POLICE STATION: IGI Airport U/S: 419/420/468/471/120B IPC & 12 PASSPORT ACT 3 Of 13 was assigned to SI Jagbir and he arrested the passenger Daljeet, Sunder Singh, Pal Singh and Manoj Dahiya and then Agent Anthony China. Accused Mehboob Khan, Irfan Khan, John Thomson and Dhruv Kumar were also arrested in pursuance to their disclosure statements.
2. After investigations, charge sheet U/s. 419/420/468/471 r/w. Sec. 120 B IPC & 12 PP Act was filed in the matter. As per the chargesheet accused/agent Deepa @ Basanti could not be arrested. Accused John Thomson and Sunder Singh were already declared POs during the proceedings. Accused Manoj Dahiya was discharged by Hon'ble High Court vide order dt. 06.02.2009. The accused Daljit Singh already convicted through the process of plea bargaining held on 09.07.2011.
3. After supply of copies a common charge for the offences U/s. 420/471 r/w 120 B IPC only was settled against the accused namely Daljit Singh, Sunder Singh, Pal Singh, Anthony China, Irfan Ali, Mehboob Khan and Dhruv Kumar on 06.09.2006. All accused persons pleaded not guilty and claimed trial.
4. Thereafter, prosecution has examined as many as 06 witnesses to prove its case.
(i). The clearing officer Mr. Praveen Misra has been examined as PW-1. He deposed that during the clearance of flight no. BA 142 one passenger namely Daljit Singh holding an Indian passport approached his counter for clearance and on scrutiny one colourful copy of US visa affixed on his passport was found forged. On questioning he revealed that he alongwith Sunder Singh and Pal Singh arrived at IGI Airport and both of them were standing outside the airport and he was introduced by Pal Singh to one airline staff Manoj Dahiya who agreed to facilitate him inside the Airport. Manoj Dahiya took him to check in counter of British Airways and helped him in getting boarding pass issued and also filled his embarkation card. He also got his Indian currency exchanged.
Manoj Dahiya was intercepted in the transit area who also admitted on questioning that he facilitated the pax in getting the boarding pass, filling his FIR NO.: 74/02 POLICE STATION: IGI Airport U/S: 419/420/468/471/120B IPC & 12 PASSPORT ACT 4 Of 13 embarkation card and getting his currency exchanged. Thereafter, Pal Singh and Sunder Singh were apprehended from outside the airport. The accused Sunder Singh revealed on questioning that he had arranged the forged visa through Antony China on payment of Rs. 8 lacs. Accused Pal Singh was also questioned and he revealed that Manoj Dahiya was known to him and he with the help of Manoj Dahiya facilitated the passenger inside the airport. He lodged the complaint Ex. PW-1/A and took into possession the travel documents and all the four accused persons alongwith complaint to the Duty Officer through SAG Mukesh Chand for registration of FIR.
Witness was not cross examined by the Ld. Defence counsel despite opportunity being granted.
(ii). One Public witness Mr. Mukhtiar Singh has been examined as PW-2. He deposed that Daljeet Singh was his brother in law (jijaji) and he was inclined to go abroad and for this purpose they had talked with one agent Sunder Singh (PO) who agreed to arrange against the payment of Rs. 8 lacs. The payment of Rs. 2.30 lacs was given to him initially for USA visa and he also arranged the ticket. He alongwith Daljeet Singh visited the office of Anthony China for this purpose and Sunder Singh also accompanied them. Anthony China met there and he assured that he would arrange USA visa for accused Daljeet Singh. The remaining payment was to be made after the arrival of accused Daljeet Singh at USA.
Since witness was resiling from his previous statement he was cross examined by the Ld. APP for the State.
In his cross-examination by Ld. APP, he deposed that his statement was not recorded by the police. He admitted that wife of Anthony China met them in office who also assured them that visa would be arranged. He denied that he stated before the police that Daljeet Singh had told him that Sunder Singh had taken him to Delhi and had kept Rs. 30,000/- as a commission and Rs. 38,000/- were taken back by him from the wife of Anthony China. He denied that he stated before the police that Daljeet Singh told him in the office of Anthony China that Gurmail Singh was also taken to Delhi by Sunder Singh and FIR NO.: 74/02 POLICE STATION: IGI Airport U/S: 419/420/468/471/120B IPC & 12 PASSPORT ACT 5 Of 13 Anthony China took them to Mehboob Khan and said that he is arranging visa for them on the commission basis and then Mehboob Khan took them to Darya Ganj where another person was standing near him namely Pal Thomson and told that Pal Thomson will take his commission and arrange visa for USA and asked them not to worry and then he took them to Anupam Cinema where one Dhruv Kumar was introduced who further took them to Mugal Bagh and introduced to Basanti Deepa who assured for arranging visa. He denied that he had deliberately suppressed the facts and resiling from his previous statement.
Witness was not cross examined by the Ld. Defence counsel despite opportunity was granted.
(iii) Another Public witness Mr. Gurmej Singh has been examined as PW-3. He stated that accused Daljeet Singh was his brother in law (Sala), he was intending to go abroad and for sending him abroad and for that purpose, he had talked with agent Sunder Singh who demanded Rs. 8 lacs for this purpose and Rs. 2.5 lacs were given to him by Daljeet Singh. The remaining amount was to be paid after arrangement of his visa. He alongwith Mukhtiar Singh and Daljit Singh met Sunder Singh at Delhi who introduced them to one Madam at Delhi. Sunder Singh assured them that he would provide original and genuine visa. Then they came back to their village. Thereafter they came to know that Daljit Singh had been apprehended by the police due to sticker visa. He had not met with the other persons.
Since witness was resiling from his earlier statement, he was cross examined by the Ld. APP for State.
In his cross examination by the Ld. APP for State, he stated that police had recorded his statement but he denied that accused Sunder Singh got introduced Anthony China at Connaught Place and told them that he would take his commission and Anthony China took them to Mehboob Khan at Nizamuddin and told that he would arrange the visa on commission basis. He further denied that Mehboob Khan took them to Darya Ganj to meet Irfan Ali for arranging visa on commission basis and Irfan Ali pointed out towards one person namely John Thomson and told that he would arrange visa for them and would retain his commission. He further denied that Thomson took them to Dhruv Kumar at FIR NO.: 74/02 POLICE STATION: IGI Airport U/S: 419/420/468/471/120B IPC & 12 PASSPORT ACT 6 Of 13 Anupam Cinema and told that he would arrange the visa for them on commission. He admitted that Sunder Singh had taken them to Karol Bagh and introduced them to a Madam namely Basanti Deepa. He denied that accused Dhruv had taken them to this Madam. He admitted that Basanti Deepa told them she is taking commission and she asked them not to worry as she had talked with USA Embassy and within 04 days Daljit would get visa as his passport had been sent to USA Embassy and Sunder Singh had told them that the persons namely Anthony China, Basanti Deepa, Dhruv Kumar, Irfan Ali, Mehboob Khan, John Thomson are with him and due to this reason he stated before the police that these persons had cheated them and taken money from them. He denied that he had been won over by the accused persons, therefore, he had resiled from the previous statement. He denied that he had deliberately denied about his meetings with Anthony China, Dhruv Kumar, Irfan Ali, Mehboob Khan and John Thomson and deliberately denied to identify them in the court.
(iv) Mr. Anne Marie Brunn, Assistant Regional Security Officer, United States of America has been examined as PW-4. She deposed that on the basis of authority letter produced on record as Ex. PW-4/A and stated that the visa Ex. PX was never issued from the USA Embassy on the passport bearing no. A4229120 Ex. P-1 and she proved the report furnished on behalf of Sh. David S. Williams as Ex. PW-4/B.
(v) SI Rita from South Campus has been examined as PW-5. She deposed that on 19.02.2002 she recorded FIR Ex. PW-5/A and put her endorsement on the original complaint already Ex. PW-1/B and seized original documents Ex. P-1 to P-7 vide seizure memo Ex. PW-5/C. Both witnesses were not cross examined by the Ld. Defence counsel despite opportunity being granted.
(vi) Inspector Jagbir Singh has been examined as PW-6. He deposed that on 19.02.2002 the investigation in the matter was assigned to him and all the travel documents alongwith copy of FIR, travel documents and its seizure memo for four accused persons were handed over to him for investigation. He arrested all the said four accused persons vide arrest memo Ex. PW-6/A to PW-6/D and recorded their disclosure statements vide Ex.
FIR NO.: 74/02 POLICE STATION: IGI Airport U/S: 419/420/468/471/120B IPC & 12 PASSPORT ACT 7 Of 13 PW-6/E.
He further deposed that on interrogation, the accused Daljeet Singh (already convicted) disclosed that he was willing to go to USA and for that he had approached one Sunder Singh (since PO) who told that he would arrange his Visa in lieu of consideration of Rs. 8 lacs. He agreed and for that, he paid Rs. 2.30 lacs as an advance to Sunder Singh. The accused Sunder Singh assured that he would get the Visa arranged. The accused Sunder Singh was interrogated vide his disclosure Ex. PW-6/F. The accused Sunder Singh had disclosed that for arranging Visa, he had contacted one Anthony China who would arrange the said Visa. PW 6 deposed that accused Anthony China was also arrested and proved his arrest vide memo Ex. PW-6/G, personal search as Ex. PW-6/H. The witness further proved his disclosure statement recorded vide Ex. PW-6/I, wherein accused Anthony China had disclosed that he had arranged the Visa in question through Mehboob Khan. Witness also proved the arrest of accused Mehboob Khan vide Ex. PW-6/J and his personal search as Ex. PW-6/K. Witness further proved disclosure statement of accused Mehboob Khan vide Ex. PW-6/L, wherein he disclosed that he had arranged the Visa through Irfan Khan. He also proved the arrest of accused Irfan Khan vide Ex. PW-6/M and his personal search as Ex. PW-6/N. He further proved the disclosure statement of accused Irfan Khan as Ex. PW-6/O. He disclosed the name of his associate as John Thomson in the said crime/act. The witness also proved the arrest of accused John Thomson vide arrest memo Ex. PW-6/P and his personal search vide Ex. PW-6/Q. The said accused was also interrogated and his disclosure statement was recorded vide Ex. PW-6/R. He disclosed the name of his associate as Dhruv Kumar, who had arranged the Visa in question. The arrest of accused Dhruv Kumar was proved vide memo Ex. PW-6/S and his personal search was proved vide memo Ex. PW-6/T. His disclosure statement was proved vide memo Ex. PW-6/U. Accused disclosed that he had arranged the Visa in question with the help of his associate Deepa, who could not be traced out.
He further deposed that the Visa was handed over to accused Daljeet Singh and then for the facilitation of his journey Sunder Singh told that Pal Singh is known to him and he is familiar with Air Lines Staff namely Manoj FIR NO.: 74/02 POLICE STATION: IGI Airport U/S: 419/420/468/471/120B IPC & 12 PASSPORT ACT 8 Of 13 Dahiya. Daljeet Singh, Sunder Singh and Pal Singh met Manoj Dahiya, who took Daljeet Singh inside the Airport and arranged his Boarding Card and also filled his Embarkation Card and also helped in exchanging the currency. Pal Singh and Sunder Singh were standing outside the Airport and they were apprehended by the Immigration and later on handed over to Duty Officer through SAG alongwith Manoj Dahiya and Daljeet Singh. He recorded the statement of witnesses and the Visa was also verified from the concerned Embassy i.e. USA and it was found counterfeit. After completion of investigation, the chargesheet was filed.
In his cross examination, he deposed that the name, parentage and address of accused Irfan Ali was not disclosed by accused Mehboob Khan. He voluntarily deposed that accused Irfan Ali was identified by accused Mehboob Khan. He admitted that accused Mehboob Khan did not disclose the specific place from where the accused Irfan Ali could be apprehended. He further voluntarily disclosed the place as Darya Ganj. Witness denied that he had not given the intimation about the arrest of accused Irfan Ali to his sister Shabana.
The IO was also confronted with arrest memo Ex. PW-6/M as same does not bear the signature of accused's sister Shabana. He voluntarily stated that the intimation was given on the telephonically to Shabana as mentioned in the Memo. He admitted that accused Irfan Ali had not disclosed the parentage and address of accused John Thomson. He denied that no such disclosure statement was given by the accused. He further denied that accused Mehboob Khan had not named Irfan Ali and about his involvement in this case. Witness further denied that signatures of the accused Irfan Ali were taken on blank papers and later on used to manipulate the false evidence against him. He also denied that he was deposing falsely.
In his cross examination by Ld. Defence counsel for accused Anthony China, Pal Singh and Dhruv Kumar, he admitted that no incriminating documents were recovered from any of the accused persons namely Anthony China, Pal Singh and Dhruv Kumar. He also admitted that no other complaint was received against these accused persons except the present case. He further deposed that no material was recovered from the office of Anthony China which could show any preparation of fake document or visa. He admitted that he had not verified as to what business was being carried out in the office of Antony FIR NO.: 74/02 POLICE STATION: IGI Airport U/S: 419/420/468/471/120B IPC & 12 PASSPORT ACT 9 Of 13 China. He also had not verified about the nature of business of accused Pal Singh and Dhruv Kumar. He denied that the accused persons were only friends of Daljeet Singh and they had not participated in any fabrication, arranging or preparation of document. He also denied that Antony China, Pal Singh and Dhruv Kumar were falsely implicated /impleaded as accused persons rather they should have been cited as witnesses. He also denied the suggestion that accused persons had not made any disclosure statement and their signatures were obtained on the blank papers and later on, the statements were written.
Witness was not cross examined by the accused Mehboob Khan despite opportunity being granted.
5. No other PW was examined by the prosecution and the PE was closed and the matter was fixed for statement of accused persons u/s 313 Cr. PC.
6. Statement of accused persons namely Anthony China, Mehboob Khan, Pal Singh, Irfan Ali and Dhruv Kumar were recorded separately u/s 313 Cr. PC and all the incriminating material coming on record was put to them to which they stated that they have been falsely implicated. All accused were given opportunity to lead DE in their defence. However, no defence evidence was led by any of the accused and the matter was fixed for final arguments.
7. I have heard final arguments on behalf of parties and perused the record.
8. To prove bring home conviction against all the accused persons namely Anthony China, Mehboob Khan, Pal Singh, Irfan Ali and Dhruv Kumar, the prosecution has examined two key public witnesses PW-2 Mukhtiar Singh and PW-3 Gurmej Singh. Both the witnesses have deposed against the accused Sunder Singh and Deepa Basanti who are PO. They had stated nothing against the other accused persons.
There are contradictions in their testimonies of PW 2 and PW 3 about their meeting with accused Anthony China and their presence with each FIR NO.: 74/02 POLICE STATION: IGI Airport U/S: 419/420/468/471/120B IPC & 12 PASSPORT ACT 10 Of 13 other at Delhi. The prosecution witness i.e. PW-2 Mukhtiar Singh had stated that he visited Delhi as well as the Office of Anthony China alongwith Daljeet Singh and Sunder Singh and he had not deposed about the presence of Gurmej Singh while PW 3 Gurmej Singh has stated that he alongwith Mukhtiar Singh, Daljit Singh and Sunder Singh came at Delhi and they were introduced with one Madam there. PW 3 Gurmej Singh had not stated about their visit at the office of accused Anthony China. Both these witnesses have not deposed anything which could incriminate the accused persons who are facing trial. Nothing incriminating has been stated by both the material witnesses against the accused persons who are facing trial.
PW-4 & 5 are the formal witnesses.
PW-1 was the Clearing Officer on whose complaint the present FIR has been registered. Further, PW-6, the Investigating Officer has proved the investigation and arrest of all the accused persons. Nothing has come up in the evidence or in the investigation against the accused persons which could incriminate them for arranging the fake visa after entering into a criminal conspiracy for facilitating the journey of accused Daljit Singh on the basis of said fake visa. To prove the commission of offence of criminal conspiracy, the prosecution was required to prove that there was a meeting of minds between the conspirators to do an illegal act and mere fact that they had made a confession or disclosure wherein they had allegedly confessed that they had entered into a criminal conspiracy to facilitate journey of co accused Daljeet Singh on a fake visa was not sufficient to establish a charge.
The prosecution must establish that there was meeting of minds between two persons to do an unlawful act. It is very difficult to get direct evidence to prove criminal conspiracy and it can be proved only by circumstantial evidence. However, it is not sufficient in order to convict a person under this section, merely to prove that he had been associating with the other accused at a certain place and on his arrest endeavoured to extricate himself from being accused of some thing connected with the conspiracy; and the prosecution cannot complete what is necessary in order to show that he was a person FIR NO.: 74/02 POLICE STATION: IGI Airport U/S: 419/420/468/471/120B IPC & 12 PASSPORT ACT 11 Of 13 who concerted with others by proving that he was friendly with the other accused and was anxious to escape observation or even was doing his best to conceal his whereabouts. In cases of conspiracy, the agreement between the conspirators cannot generally be directly proved, but only inferred from the established facts in the case. A conspiracy need not be established by evidence of an actual agreement between the conspirators and overt acts raise a presumption of an agreement and knowledge of the purpose of the conspiracy. The connection has to be established with the conspiracy and not with the separate acts of different conspirators which are the overt acts of the different individuals in proof of the conspiracy. Overt acts may properly be looked at as evidence of the existence of a concerted intention and in many cases it is only by means of overt acts that the existence of the conspiracy can be made out. But the criminality of the conspiracy is independent of the criminality of the overt act. To prove conspiracy it is not necessary that there should be direct communication between each conspirer and every other but the criminal design alleged must be common to all."
(As per Hon'ble High Court of Gujrat in case of Kavit Vs. State of Gujrat High Court)
9. Taking into consideration the abovesaid, there is nothing on record except the disclosure statement of the accused persons themselves which could prove that they all entered into a criminal conspiracy. There is nothing on record to establish meeting of minds among the accused persons. Mere association of the accused persons at a certain place or their endevours to extricate themselves from being accused of something connected with the conspiracy, they cannot be held to be a part of the conspiracy. The prosecution has failed to bring on record any material to prove that the present accused persons who are facing trial entered into a criminal conspiracy or were part of conspiracy with each other or with the passenger.
FIR NO.: 74/02 POLICE STATION: IGI Airport U/S: 419/420/468/471/120B IPC & 12 PASSPORT ACT 12 Of 13
10. In view of the above discussions, as the material witnesses examined by the prosecution have not supported the case of the prosecution. The testimony of other witnesses is not sufficient to prove the case against the accused persons namely Anthony China, Mehboob Khan, Pal Singh, Irfan Ali and Dhruv Kumar. I am satisfied that the prosecution has failed to prove its case against all accused who are facing trial and they are entitled to benefit of doubt. They all accordingly stand acquitted. Their bail bonds stand cancelled. Sureties are discharged.
Announced in the open
Court on 30th October, 2013 SUDESH KUMAR
ACMM-01/New Delhi District
Patiala House Courts, New Delhi
This judgment contains 13 pages and each paper is signed by me.
FIR NO.: 74/02 POLICE STATION: IGI Airport U/S: 419/420/468/471/120B IPC & 12 PASSPORT ACT 13 Of 13