Delhi District Court
7 vs Pradeep Kumar Singh on 12 February, 2016
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IN THE COURT OF SH. GURDEEP SINGH,
SPECIAL JUDGE (PC ACT), CBI-05 PATIALA HOUSE COURTS,
NEW DELHI.
CC No. : 88/12
RC No. 1(A)/2012/DLI/CBI/ACB/New Delhi
Unique Case ID No.: 02403R0087122012
In re:-
Central Bureau of Investigation
V.
1. Pradeep Kumar SIngh
S/o Sh. Ramji Lal
Section Officer
Foreigners Division
Ministry of Home Affairs, New Delhi
R/o: H. No. F-24, Sector-10, Raj Nagar
Ghaziabad, U.P.
2. Sunil Keshary
S/o Sh. Shankar Prasad Keshary
Proprietor
M/s Russia Holiday Tours
Block No. 1, Abbas Manzil, 3rd Floor
Opposite GTI, Cigarette Factory, Shah Road
Chakla, Andheri East, Mumbai
R/o: (i) H. No. 69C, Pocket-E, Gangotri Enclave
Alaknanda, Near Tara Apartment, New Delhi
(ii) Flat No. 401-402, Building No. 12,
Shanti Garden, Sector-6, Mira Road (East)
Thane, Mumbai-401 107
3. Ravinder Singh
S/o Sh. Bichater Singh
R/o H. No. H-78, Garhwali Mohalla
CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 1 of 74
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Laxmi Nagar, Delhi - 110 092
Date of filing of charge-sheet : 21.12.2012
Date of conclusion of arguments : 01.02.2016
Date of pronouncement of judgment : 12.02.2016
Appearances:
For CBI :Sh. K.P. Singh, learned PP.
For accused :Sh. Sandeep Sharma, Advocate.
JUDGMENT
...........................
1. This is a case filed under Prevention of Corruption Act, 1988 (in short 'P C Act' for offences punishable u/s 7, 8 and 12 of PC Act, 1988 read with S. 120-B Indian Penal Code (in short 'IPC') against accused Pradeep Kumar Singh (P. K. Singh), a public servant, and Sunil Keseri and Ravinder Singh, private persons.
2. Brief facts of the prosecution case are that the present case was registered on the basis of source information on 17.01.2012 by CBI, Anti Corruption Branch, New Delhi regarding accused P. K. Singh, Sunil Keseri and Ravinder Singh entered into criminal conspiracy with each other and in furtherance to said conspiracy accused P. K. Singh, working as Section Officer in Foreigners Division, Ministry of Home Affairs, New Delhi, had demanded illegal gratification of Rs. 15,000/- from Sunil Kesari for extending visa of a Cambodian National, which was expired on 15.01.2012. Accused Sunil Keshari deputed Ravinder Singh for delivering the relevant CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 2 of 74 -3- documents of the Cambodian National for extension of visa and illegal gratification of Rs.15,000/- to accused P. K. Singh at his office at Jaisalmer House, New Delhi on 17.1.2012 for which accused P. K. Singh agreed.
3. During the investigation, it was disclosed that Noaman Khan of Mumbai runs a Firm by name M/s Global Visa Services dealing in consultancy and facilitating visa of various countries and he contacted accused Sunil Keshary for the extension of visa of Cambodian National Ms. Noeurm Sopheap. Accused Sunil Keshary, who runs a travel agency in the name and style of 'Russian Tour and Travel' dealing with visa related issues, discussed it with accused P. K. Singh who demanded Rs. 15,000/- for extension of visa. As per discussion with Sunil Keshary, Noaman Khan provided passport and connected documents to Sunil Keshary for obtaining the visa extension from Foreigners Division of MHA in favour of Cambodian National Ms. Noeurm Spheap and said documents were sent through Blue Dart Courier to Delhi address of Sunil Keshary and were, subsequently, alongwith bribe amount delivered by Ravinder Singh to Pradeep Kumar Singh on 17.1.2012.
4. Trap team was constituted lead by Inspector Kailash Sahu and two independent witnesses and trap was laid and accused P. K. Singh was arrested from his office on 17.1.2012 and accused Ravinder Singh was apprehended from Connaught Place, New Delhi, who revealed after his CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 3 of 74 -4- apprehension that he had given Rs.15,000/- in cash. The bribe money was recovered from the possession of the accused P. K. Singh. The personal search of accused Ravinder Singh led to recovery of passport, application form for visa related services, medical documents in the name of Cambodian National Ms. Noeurm Sopheap.
5. During the course of investigation, CD containing 36 recorded calls were also received from CBI Special Unit, containing conversations related to the transaction of above bribe amount among the accused persons. It was sent to CFSL for comparison by expert. Specimen voices of accused P. K. Singh, Sunil Keshary and Ravinder Singh matched with the voice recorded in CD.
6. Initially accused Ravinder Singh was not sent for trial. My Learned Predecessor had taken cognizance and summoned the accused Ravinder Singh. Necessary sanction was obtained against accused P. K. Singh for prosecution and after completion of the investigation the charge sheet was filed.
7. Subsequently supplementary charge sheet was also filed in respect of the author of the forged medical certificate dated 11.01.2012 purported to have been issued by Dr. Narayan G. Bhatt of Fracture Orthopaedic Hospital, Surat (Gujrat) in favour of Noeurm Sopheap, which was used in Foreigners Division, MHA. During investigation, in order to ascertain the author of the forged medical certificate, specimen handwriting CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 4 of 74 -5- of suspects were sent to handwriting expert with forged certificate for comparison and opinion but the author of the forged document could not be established.
8. Vide order on charge dated 28.2.2014, all the three accused persons were charged for offences punishable u/s 120-B IPC read with S. 7, 12 and 13(2) of PC Act, 1988 read with S. 13(1)(d) of PC Act, 1988 to which they pleaded not guilty and claimed trial. Accused Sunil Keshary was also separately charged for offences punishable u/s 12 of P. C. Act, 1988, to which he also pleaded not guilty and claimed trial. Accused P. K. Singh was also charged separately for offences punishable u/s 13 (2) read with S. 13(1)(d) of P. C. Act, 1988, to which he also pleaded not guilty and claimed trial.
9. The Prosecution in support of their case, examined as many as 21 witnesses.
10. Prosecution examined PW-3 Sh. Sunil Kumar Vaid, an independent witness, PW-12 Sh. Arun Kumar Gupta, independent witness, PW-13 Insp. Kailash Sahu intial Trap Laying Officer, PW-20 Sh. Sunil Dutt, Dy. S. P. Trap Team Member regarding laying of trap, arrest of accused persons and recovery from accused person.
11. PW-1 Sh.Yogesh Sharma, is witness, who was initially posted at Foreign Division, MHA and was looking after the seat pertaining to visa extension, passport for Cambodia National CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 5 of 74 -6- on 17.1.2012 in pre lunch session. PW-4 Sh. Shashi Bodh Mishra, UDC, MHA is witness who was looking after the seat in post lunch session and deposed regarding having dealt with the application of Cambodian National Ms. Noeurm Sopheap. PW-7 Sh. Vinod Kumar, Dy. Secretary (Foreigners) in MHA, is witness regarding procedure of handling application and supplied the record to CBI with respect to visa extension application of Ms. Noeurm Sopheap. PW-6 Sh. P. Shankar and PW-18 Sh. Devender, Assistants in MHA are the witnesses regarding voice identification of accused P. K. Singh but they turned hostile with respect to voice of accused P. K. Singh.
12. PW-15 Sh. Sukhbir Singh is witness regarding obtaining voice sample of accused Sunil Keshary. PW-9 Sh. Anurag Aggarwal is witness regarding obtaining voice sample of accused Pradeep Kumar Singh and Ravinder Singh were recorded. PW-10 Sh. M.C. Kashyap, retired Dy. SP who intercepted calls of mobile numbers 9871780406, 9833868880 and 9818125424 containing voices of accused persons. PW-21 Dr. Rajender Singh is witness from CFSL who had examined the CDs and matched the voice of accused Ravinder Singh, Sunil Keshary and P. K. Singh.
13. Prosecution also examined PW-2 Sh. Vishal Gaurav, Nodal Officer of Bharti Airtel Limited, who is witness with respect to mobile call details record and CAF of accused Ravinder Singh. PW-14 Sh. Anuj Bhatia, Nodal Officer in Vodafone is witness CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 6 of 74 -7- in respect of mobile call details record and CAF of accused Sunil Keshary. PW-17 Sh. Ramesh Narayan Das Khatri, employee of Global Visa Services is witness who deposed that from Global Visa Services, passport, visa etc. of Ms. Noeurm Sopheap was sent through Blue Dart Courier to the residential address of accused Sunil Keshary. PW-19 Sh. Oscar Fernandes, Operational Manager, Blue Dart Courier deposed that the airway bill sent by M/s Global Visa Services on 12.1.2012 was delivered to Russia Holidays Tours, E-69, C Gangotri Enclave, Alakhnanda, Delhi which was received on 13.1.2012 by one Sh. Akshar at the given address.
14. PW-11 Sh. Arvind Mukherjee is witness of sanction of accused P. K. Singh for prosecution.
15. Prosecution also examined PW-16 Dr. Reeta Rani Gupta, expert from CFSL. She compared the handwriting of Dr. Nayan G. Bhatt and opined that handwriting of Dr. N. G is not matched and opinion could not be expressed with respect to other person. PW-8 Dr. Nayan G. Bhatt, who allegedly given medical certificate to Cambodian National. PW-5 Sh. Ravinder Bhai Bhim was attendant to the clinic of Dr. Nayan G. Bhatt. However, these witnesses are not relevant as the Certificate was not found to be forged.
16. Investigating Officer, however, could not be examined as he was deputed to UN Mission in Liberia and could not come.
CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 7 of 74 -8-
17. After conclusion of prosecution evidence, separate statement of accused persons under Section 313 Cr.PC recorded wherein they denied the prosecution evidence and claimed to be innocent, however, they, except accused P. K. Singh, chose not to lead evidence in their defence
18. In his statement recorded u/s 313 Cr.PC, accused Pradeep Kumar Singh denied the prosecution evidence, however, he admitted that he was Section Officer of F-7 and present in the office on 17.1.2012 in the Visa Hall and was processing the cases. With respect to presence of application of Cambodian National, he showed his ignorance. With respect to co- accused, he stated that they are not known to him. He denied that Rs. 15,000/- was recovered from him. He, however, stated that on his search, his personal belongings, including an amount of Rs.33900/- was recovered from his person. He denied that his voice sample was taken. With respect to recovery of Rs.17,000/- from his office premises which was concealed in register kept near his seat, he stated that the office where he sit was not his exclusive office and many other officials also used to sit there. He stated that during course of his duty, he may not have obliged any person for illegal work or out of the work who may be known to any senior official of CBI and because of that either he or some other official of MHA bore grudge against him and it could be one of the reason that he was framed in present case falsely so that he may be removed from the office. He stated that on CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 8 of 74 -9- 17.1.2012, he was carrying Rs.33,900/- with him for his personal use as he had to purchase medicines for his father who is a cancer patient. The independent witnesses produced by CBI are not independent witnesses as per order of Chief Vigilance Commission. He also stated that he had no concern with the Cambodian National nor was he authorized to deal with their cases. He stated that he would lead evidence in his defence and examined his father Sh. Ramji Lal as PW-1, DW-2 Sh. Sameer Raj Singh, Ahlmad in the court of Sh. Pravin Singh, Special Judge (PC Act), CBI-02, PHC and DW-3 Sh. Aditya Jha, Nodal Officer, Bharti Airtel Limited in his defence.
19. In his statement u/s 313 Cr.PC, accused Sunil Keshary also denied prosecution evidence and stated that he has no concern with accused P. K. Singh and had no acquaintance with him. He had shown ignorance regarding apprehension of his co- accused after trap. He, however, stated that report regarding tallying his voice with CD and call records is false and documents have been fabricated to make false case. CD does not contained his voice and his specimen voice was not taken. He also showed ignorance regarding payment was sent through Ravinder Singh for accused P. K. Singh. He stated that he is resident of Mumbai and residing there and doing a business of outbound services i.e. sending Indians abroad. He does not know accused P. K. Singh or accused Ravinder Singh nor he knows any Cambodian National. He never deputed CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 9 of 74 -10- anybody for extension of visa of any Cambodian National, Ms. Noeurm Sopheap. He further stated that till date he failed to understand as to why he has been implicated in the present case, and he is innocent. However, he chose not to lead evidence in his defence.
20. Accused Ravinder Singh also denied prosecution evidence and in reply to question regarding recovery of Rs.15,000/- from co-accused P. K. Singh, he stated that while he was coming back to his home, he was intercepted with his driver near India Gate and was later on falsely arrested in the case shown to have been arrested at Connaught Place. He also denied that his voice sample was taken and stated that he has been falsely implicated in this case. He stated that he did not hand over any document to accused P. K. Singh and neither accused P. K. Singh nor Sunil Keshary were known to him before this false case and he has no role at all in the entire allegations set out graphically by the investigating agency in the present case except that he was asked by a tourist to deposit the document which he did, unknown to the fact that he shall be falsely implicated. Even CBI had not find sufficient evidence against me, therefore has not made accused in charge sheet. The both witnesses, so produced by CBI, are not independent as per order of CVC. However, he also chose not to lead evidence in his defence.
21. I have heard Sh. K.P. Singh, learned PP for CBI and CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 10 of 74 -11- Sh. Sandeep Sharma, Advocate for all the three accused persons. I have also gone through the record.
SANCTION
22. Firstly, I shall deal with the issue of sanction for prosecution of government servants. Accused Pradeep Kumar Singh (P. K. Singh) is a public servant and therefore prior sanction u/s 19 P. C. Act is required to prosecute a public servant under P. C. Act. The prosecution examined PW-11 Sh. Arvind Mukherjee to prove the sanction. He testified that in December, 2012, he was posted as Under Secretary, Ministry of Home Affairs. In the present case, CBI had sent the documents, statement of witnesses and then he had processed those documents and placed before the Competent Authority which was at that time Minister of Home Affairs Sh. Sushil Kumar Shindey who after perusing all the relevant material had accorded Sanction on the file pertaining to the case of accused Pradeep Kumar Singh. Further, he stated that after that the file was again marked to him for conveying the sanction for prosecution and he accordingly, conveyed the sanction for prosecution against accused Pradeep Kumar Singh vide letter dated 14.12.2012 as per the Transaction of Business Rules. He proved the sanction dated 13.12.2012 as Ex. PW-11/A and forwarding letter dated 14.12.2012 as Ex.PW-11/B.
23. I have perused the sanction order Ex.PW-11/A, it finds mentioned brief facts, registration of FIR, perusal of CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 11 of 74 -12- documents i.e. voice identification memo, statement of P. K. Singh and other witnesses, competence of President of India to remove the accused, then the sanction was accorded u/s 19 of PC Act, which is signed in the name of President of India by Under Secretary to Govt. of India.
24. It is submitted by Ld. Defence Counsel that the sanction is invalid as Mr. Sushil Kumar Shindey was not the competent authority to remove the accused and it was without application of mind. In the cross-examination PW-11 has stated that Hon'ble Home Minister was acting on behalf of Hon'ble President of India. The delegation of these powers are under Transaction of Business Rule. The file had never gone to President's office. He stated that he had not brought Transaction of Business Rules today (on the day of examination) in the court nor the same was supplied by him to the IO.
25. The Transaction of Business Rules delegates powers of President of India to concerned minister. Same are notified. Therefore, the court is required to take judicial note of this fact and therefore same need not to be proved by the prosecution separately. As regards non application of mind, PW-11 in his cross-examination stated that without looking into the file, he cannot say whether it was duly in the knowledge of the competent authority that there is no complainant in the present case. He stated that allegations against accused P. K. Singh CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 12 of 74 -13- was of demand and acceptance of money for extension of visa of the foreign national. He stated that he had been shown the statement of witnesses and the same were perused by him and the competent authority.
26. Therefore, the witness has categorically stated that they had perused the documents and principle allegations are known to them, and other facts he could not remember without looking at the file. The competent authority had relevant material before them for which they had accorded sanction. Therefore it cannot be said that there was no application of mind. The law on the subject is well settled now. The hon'ble Supreme Court of India has culled out the principles on the subject, in case titled as State of Maharashtra Through CBI v. Mahesh G. Jain, (2013) 8 SCC 119, as follows :-
(a) It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out.
(b) The sanction order may expressly show that the sanctioning authority has perused the material placed before it and, after consideration of the circumstances, has granted sanction for prosecution.
(c) The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and its satisfaction was arrived at upon perusal of the material placed before him.
(d) Grant of sanction is only an administrative function and the sanctioning authority is required CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 13 of 74 -14- to prima facie reach the satisfaction that relevant facts would constitute the offence.
(e) The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order.
(f) If the sanctioning authority has perused all the materials placed before him and some of them have not been proved that would not vitiate the order of sanction.
(g) The order of sanction is a pre-requisite as it is intended to provide a safeguard to public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hyper-technical approach to test its validity.
27. It is also worthwhile to note the observation of the Hon'ble Supreme Court of India as under:-
17. At this stage, we think it apposite to state that while sanctity attached to an order of sanction should never be forgotten but simultaneously the rampant corruption in society has to be kept in view. It has come to the notice of this Court how adjournments are sought in a maladroit manner to linger the trial and how at every stage ingenious efforts are made to assail every interim order. It is the duty of the court that the matters are appropriately dealt with on proper understanding of law of the land. Minor irregularities or technicalities are not to be given Everestine status. It should be borne in mind that historically corruption is a disquiet disease for healthy governance. It has the potentiality to stifle the progress of a civilized society. It ushers in an atmosphere of distrust. Corruption fundamentally is perversion and infectious and an individual perversity CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 14 of 74 -15- can become a social evil. We have said so as we are of the convinced view that in these kind of matters there has to be reflection of promptitude, abhorrence for procrastination, real understanding of the law and to further remain alive to differentiate between hyper-
technical contentions and the acceptable legal proponements.
28. Therefore, as per discussion above, I am of the opinion that the competent authority has properly accorded sanction for prosecution of public servant.
LAYING OF TRAP
29. PW-13 Inspector Kailash Sahu is Trap Laying Officer. He testified that on 17.01.2012, FIR, Ex. PW13/A, was registered against four persons including Pradeep Kumar Singh and entrusted to him for investigation and it was alleged that Pradeep Kumar Singh had demanded an amount of Rs. 15,000/- from one Sh. Sunil Keshary for getting visa extended of a Cambodian National and for this Sh. Sunil Keshary had deputed Ravinder Singh for delivering the documents and demanded bribe amount to P.K. Singh. After going through the FIR, he contacted the source who informed that Sh. Ravinder Singh will deliver the demanded amount of Rs.15,000/- to Sh. P.K. Singh on 17.01.2012 itself and even Sh. Ravinder Singh already visited the Foreigners Division, Jaisalmer House, MHA, New Delhi. Thereafter a trap team was formed comprising of him as trap laying officer, Sh. Sunil Dutt Inspector (PW-20), Sh. A.K. Maurya Sub-inspector, Sub-
CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 15 of 74 -16- ordinate staff and two independent witnesses Sh. Sunil Kumar Vaid (PW-3) and Sh. Arun Kumar Gupta (PW-12). They were explained the purpose of gathering and they also gone through the FIR.
30. Further, PW-13 Inspector Kailash Sahu stated that since accused Ravinder Singh was already waiting in the Foreigners Division, the trap team members left CBI office at about 10:45 hours and reached near Jaisalmer House at about 11:00 hours. After briefing the team members, he alongwith Sh. Arun Kumar Gupta (PW-12) entered the premises of Jaisalmer House and then visited visa information center of the Foreigners Division. Through source, they could identify Sh. Ravinder Singh who was waiting inside the visa information centre. After a few minutes another person identified later as Sh. Pradeep Kumar Singh, Section Officer, Foreigners Division MHA entered the said visa information centre and met with Sh. Ravinder Singh. They had conversation with each other. Sh. Ravinder Singh also provided some documents to Sh. Pradeep Kumar Singh and requested him to get the visa of Cambodian national extended. Sh. Pradeep Kumar Singh directed Sh. Ravinder Singh to visit the visa facilitation centre after lunch. Thereafter Ravinder Singh came out of the building at about 1120 hours. He informed the other team members and independent witness Sh. Sunil Kumar Vaid about the development which had taken place in the visa facilitation centre after coming out. After they waited CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 16 of 74 -17- outside the Jaisalmer House.
31. Further, he stated that at about 03.00 p.m. Sh. Ravinder Singh again entered the premises of Jaisalmer House and proceeded towards visa facilitation centre. Sh. Pradeep Kumar Singh again met Ravinder Singh who made computerized application for visa related services again from the concerned counter on the direction of Sh. Pradeep Kumar Singh, as address of Ravinder Singh instead of original applicant was mentioned. When Sh. Ravinder Singh entered the visa facilitation centre at about 03.00 pm, he alongwith Sh. Sunil Kumar Vaid had followed him and entered in the visa facilitation centre at the first floor of Jaisalmer House. On the direction of accused Sh. Pradeep Kumar Singh, Sh. Ravinder Singh also made photocopies of his driving license and passport of the Cambodian National and handed over the same to Sh. Pradeep Kumar Singh. Sh. Ravinder Singh also made a call to someone and made Sh. Pradeep Kumar Singh talk to that person. He as well as Sh. Sunil Kumar Vaid remained inside the visa facilitation centre and had noticed the above activities of Sh. Pradeep Kumar Singh and Sh. Ravinder Singh. The other team members alongwith Sh. Arun Kumar were waiting outside and inside of the boundary of Jaisalmer House. When only 2-3 persons other than Ravinder Singh and Sh. Pradeep Kumar Singh left inside (it should be 'remained inside') the visa facilitation centre, he alongwith Sh. Sunil Kumar Vaid came out from the visa facilitation CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 17 of 74 -18- centre and waited outside the visa facilitation centre in the corridor at first floor and kept watching on the movement of accused persons.
32. He further stated that at about 04.50 p.m. Sh. Ravinder Singh came out from the Visa facilitation centre and proceeded outside the Jaisalmer House. He stated that he immediately informed Inspector Sunil Dutt (PW-20) from his mobile and asked him to follow accused Ravinder Singh. In the meanwhile the source informed him about the transaction of bribe amount of Rs.15,000/- handed over to Sh. Pradeep Kumar Singh by accused Sh. Ravinder Singh on the instructions of Sunil Keshary. He further stated that after about 10-15 minutes, he again telephonically asked Sh. Sunil Dutt to apprehend and interrogate accused Ravinder Singh in connection with his visit and transaction of bribe amount at the visa facilitation centre, Jaisalmer House. He stated that Sh. Sunil Dutt (PW-20) informed him that Sh. Sunil Keshary (it should be accused Ravinder Singh) has confessed his guilt and stated that he had handed over Rs.15,000/- to accused Pradeep kumar Singh on instruction of Sh. Sunil Keshary for getting the visa of Cambodian national extended. He also then told Sh. Sunil Dutt to bring back accused Ravinder Singh at Visa Facilitation Centre at Jaisalmer House. Simultaneously, he alongwith Sh. Sunil Kumar Vaid entered into the visa facilitation centre and after giving introduction, challenged accused Pradeep Kumar Singh for having demanded and CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 18 of 74 -19- accepted Rs.15,000/- from Sunil Keshary through Ravinder Singh for extending visa of a Cambodian National. In the meantime other team members including Sunil Dutt and Arun Kumar Gupta came back alongwith accused Ravinder Singh. In the presence of witnesses Sh. Ravinder Singh informed that he has handed over an amount of Rs.15,000/- comprising of 13 GC notes of Rs.1000/- denomination and 4 GC notes of Rs.500/-. Thereafter Sh. Arun Kumar Gupta (PW-12) recovered Rs.15,000/- from the right side pant pocket of Pradeep Kumar Singh on his instructions in presence of other team members and other independent witness Sh. Sunil Kumar Vaid. The distinctive number of GC notes were noted down in the memo later on prepared by him. The said GC notes were taken into police possession. Both the accused persons namely Pradeep Kumar Singh and Ravinder Singh were arrested vide personal search cum arrest memos. He proved memorandum of recovery Ex.PW-3/A, Arrest-cum-Personal Search memos (D4 and D5) Ex.PW-3/C and Ex.PW-3/D. He stated then thereafter office search of the accused Pradeep Kumar Singh was conducted and office search memo was accordingly prepared and during the office search Rs.17,000/- concealed in a register was found, the same was taken into possession vide a separate memo. He seized the application form for visa related services and other documents pertaining to extension of visa of Cambodian National, recovered from accused Ravinder Singh vide memo Ex.PW-3/E. Cash of about Rs.19,000/- was also CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 19 of 74 -20- recovered from the different pockets of Sh. Pradeep Kumar Singh and the same was duly mentioned in the personal search.
33. PW-20 Dy. S. P. Sunil Dutt, trap team member corroborated PW-13 Inspector Kailash Sahu regarding forming of trap team, leaving office of CBI for laying trap at Jaiselmer House, entering Inspector Kailash Sahu and independent witness Sh. Arun Kumar Gupta into the office of Visa Information & Facilitation Centre and position of other members around the Jaiselmer House and leaving of accused Ravinder Singh with direction to revisit after lunch. He stated that Inspector Kailash Sahu also identified accused Ravinder Singh to other team members, who was coming out of the campus of Jaiselmer House. PW-20 further corroborated PW-13 regarding waiting of CBI in the vicinity of Jaisalmer House and at around 3:00 p.m. accused revisited and Inspector Kailash Sahu and Sh. Sunil Kumar Vaid also entered inside the office of Visa Information & Facilitation Centre and at about 4:50 pm accused Ravinder Singh was seen coming out of the Jaisalmer House campus, and he received phone call from Inspector Kailash Sahu instructing him to follow accused Ravinder Singh and as per his instruction he alongwith independent witness Sh. Arun Kumar Gupta followed accused Ravinder Singh. Subsequently, Inspector Kailash Sahu instructed him to apprehend accused Ravinder Singh, and accordingly, he apprehended accused Ravinder Singh while he CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 20 of 74 -21- was coming out of Prakash Deep Building in Connaught Place, New Delhi and he was questioned about his visit to Jaisalmer House and his meeting with accused Pradeep Kumar Singh in presence of independent witness Sh. Arun Kumar Gupta. Accused Ravinder Singh admitted that he had paid a bribe of Rs.15,000/- to accused Pradeep Kumar Singh on the instruction of accused Sunil Keshary for getting the visa of a Cambodian National extended. He stated that he immediately informed this fact to Inspector Kailash Sahu over mobile phone, who instructed him to bring the accused at Visa Information and Facilitation Centre, Jaisalmer House. He also corroborated that they reached alongwith accused Ravinder Singh at Visa Information and Facilitation Centre and recovery of Rs.15,000/- from the possession of accused and recovery of Rs.17,000/- from the office of accused. He also identified the genuine currency notes of Rs.15,000/- as Ex.PW-20/D-1 to Ex.PW-20/D-17.
34. PW-3 Sh. Sunil Kumar Vaid, an independent witness, was also examined by the prosecution who testified that on 17.1.2012 on the instructions of the then Under Secretary, Vigilance, he alongwith his collegaue Sh. A. K. Gupta reported to Inspector Sh. Sunil Dutt, CBI to act as a witness in some CBI proceedings to be taken place. He further corroborated regarding formation and purpose of trap team, briefing trap team members, leaving CBI office for laying trap at Jaiselmer CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 21 of 74 -22- House. He stated that in the first floor of Jaisalmer House they saw a person in the name of Ravinder Singh, who was visiting P. K. Singh frequently and saw Ravinder Singh handing over some documents to accused Pradeep Kumar Singh. He stated that Pradeep Kumar Singh had instructed Ravinder Singh to come after the lunch hours and After 2:00 pm, he had seen Ravinder Singh again entering the premises of Jaisalmer House and visiting accused P.K. Singh. He (accused) had handed over some documents to Pardeep Kumar Singh, who asked him to come after some time. He saw Ravinder Singh leaving Jaisalmer House thereafter. At about 3:45 pm, the crime branch team had instructed him to enter premises of Jaisalmer House. The team had challenged accused P.K. Singh and asked him (witness) to check the pocket of P.K. Singh as he had taken bribe of Rs.15,000/- from Ravinder Singh. He stated that he had conducted search of pocket of P.K. Singh and Rs.15,000/- were recovered from the pocket of P.K. Singh. The ACB team had arrested P.K. Singh and the other team had brought Ravinder Singh inside. Both the accused persons had confessed that they had committed a mistake. Thereafter, both the accused persons were taken to CGO Complex. They were interrogated and their statements were recorded. Since it was late in the night, early morning they were taken to Safdarjang Hospital for medical examination and he left for home. He proved Memorandum of Recovery as Ex.PW-3/A, rough map as Ex.PW-3/B, arrest cum search memo of accused P. K. Singh CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 22 of 74 -23- and Ravinder Singh as Ex.PW-3/C and Ex.PW-3/D respectively and documents recovered from accused Ravinder Singh and accused P. K. Singh at the spot as Ex.PW-3/E (collectively).
35. PW-3 Sh. Sunil Kumar Vaid, however, was declared hostile by the prosecution on the point of recovery of the alleged bribe amount from the pocket of accused P. K. Singh. On being cross-examined by Ld. Senior PP for CBI, he admitted that on the instructions of Inspector Kailash Sahu, Sh. A. K. Gupta had recovered GC notes totalling Rs.15,000/- from the right side pocket of accused P. K. Singh. Further admitted that he had also stated this fact to CBI Inspector in his statement.
36. PW-12 Sh. Arun Kumar Gupta, another independent witness, was examined by the prosecution who also corroborated other witnesses regarding formation of trap team, its purpose and briefing of facts and leaving CBI office for laying trap at Jaiselmer House, and that he alongwith Inspector Kailash Sahu went inside the Visa Information and Facilitation Centre at first floor and identification of accused Ravinder Singh and Pradeep Kumar Singh, receiving of documents by Pradeep Kumar Singh from accused Ravinder Singh, leaving of accused Ravinder Singh with instruction to revisit and then sharing of developments with other team members and they awaited outside the office for revisit of accused Ravinder Singh. He further corroborated regarding revisit of accused CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 23 of 74 -24- Ravinder Singh at about 3:00 p.m. He also corroborated other witnesses and stated that this time Sh. Sunil Kumar Vaid (PW-3) proceeds towards the Visa Information & Facilitation Centre with Inspector Kailash Sahu and he (witness) remained outside with Inspector Sunil Dutt and other team members. He further corroborated other witnesses regarding instruction given to Inspector Sunil Dutt to follow accused Ravinder Singh and then apprehension of accused Ravinder Singh and stated that at about 4:50 p.m. Inspector Sunil Dutt received a phone call from Inspector Kailash Sahu who directed Inspector Sunil Dutt to follow Sh. Ravinder Singh. In the meanwhile, Ravinder Singh also came outside and left in a car. Then they followed Sh. Ravinder Singh in another car and they followed him upto Prakash Deep Building at Connaught Place and the accused went inside the Prakash Deep Building. In the meantime, Inspector Sunil Dutt had again received the phone call from Inspector Kailash Sahu who directed him to apprehend accused Ravinder Singh and then accused Ravinder Singh came out of the building at around 5:05 p.m. and was apprehended, interrogated, who told that he delivered an amount of Rs.15,000/- to accused Pradeep Kumar Singh, Section Officer on the instructions of Sh. Sunil Keshary for extension of Visa of one Cambodian National. Then again they came back at Jaisalmer House at around 5:40-5:55 pm alongwith accused Ravinder Kumar and thereafter they joined the proceedings which was already going on, headed by Sh.
CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 24 of 74 -25- Kailash Sahu and accused Ravinder Singh identified accused P. K. Singh to whom he had delivered Rs.15,000/-. He also stated that on the instructions of Inspector Kailash Sahu, he recovered Rs.15,000/- from the right side pant pocket of accused P. K. Singh, which were shown to accused Ravinder Singh and he identified the same. Then accused were arrested. Thereafter search of the office premises of accused P. K. Singh was conducted and during search Rs.17,000/- were recovered which were concealed in a register kept near the seat of accused P. K. Singh. Sketch of the office and memos were prepared there itself on the laptop. They reached back CBI Headquarter at around 8:00 - 8:15 p.m.
37. It is submitted by Ld. Counsel on behalf of accused persons that there are allegations that Ms. Noeurm Sopheap, a Cambodian national approached one Noman Khan of Mumbai for extension of her Indian visa, who in turn approached Russian Tours and Travel for extension of visa without any evidence and concocted version. It is further submitted that there are material inconsistencies in the testimony of the witnesses of trap. The secret informer who remained with the IO had not been examined and therefore they failed to link the same and cited judgment of our own Hon'ble High Court in case titled as Karan Singh v. State (NCT of Delhi) 2006 [2] JCC [Narcotics] 83; Peeraswami v. State (NCT of Delhi) cited as 139 (2007) DLT 456 and Naseeb v. State of NCT of Delhi:
2015 (5) LRC 188 (Del). It is further submitted that there is no CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 25 of 74 -26- legally admissible evidence regarding recovery of the money as statement of accused Ravinder Singh made to the police regarding having paid the bribe money to accused P. K. Singh, a public servant, is actually confessional statement and nothing has been recovered in pursuance to the same nor the same was reduced in writing and therefore same is inadmissible. Further, it is submitted that in fact, the recovered Rs.15,000/- belongs to accused P. K. Singh, which was given to him by his father, who is cancer patient, for purchase of medicine as it is proved by DW-1 Sh. Ramji Lal and claimed Rs.15,000/-.
38. PW-3 Sh. Sunil Kumar Vaid stated in his examination-in-chief that he had conducted search of the accused P. K. Singh and recovered Rs.15,000/- and ACB team has arrested accused P. K. Singh and other team has brought accused Ravinder Singh inside. He was cross-examined on this aspect by Ld. PP for CBI wherein he has stated that recovery was effected by Sh. A. K. Gupta. In his cross-examination, he stated that his statement was recorded/typed on the computer and his signatures were also taken on the same, but no signed statement was found on record. Further stated when they entered the office of Jaisalmer House, Inspector Sahu and Inspector Sunil Dutt identified accused Ravinder Singh and P. K. Singh to him. In his examination-in-chief he stated that he saw accused Ravinder Singh handing over some documents to accused P. K. Singh, however, in his cross-examination, he never stated so to CBI that accused Ravinder Singh handed CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 26 of 74 -27- over some documents to Pradeep Kumar Singh and P. K. Singh (Pradeep Kumar Singh and P. K. Singh is referred to same person) asked him to come after sometime or that he saw Ravinder Singh leaving Jaisalmer House thereafter. In his cross-examination, he was questioned that in his previous statement he had stated at 3:45 p.m., he was again instructed to enter the premises of Jaisalmer House and on this day he has stated that at 3:45 p.m. he was already inside the office of Jaisalmer House, which of these two facts is correct, in reply he stated that the fact that he was inside the Jaisalmer House at 3:45 p.m. is correct. He stated he had never came out of the premises of Jaisalmer House after entering the same at about 11:00 a.m. and again said, he may have come out for taking lunch for some time. He stated that Inspector Sahu had challenged accused P. K. Singh and had asked him to check his pocket and thereafter, he recovered Rs.15,000/- from the pocket of P. K. Singh, and besides Rs.15,000/- some personal amount was also recovered from the pocket of P. K. Singh. Accused Ravinder Singh was brought after about 30 minutes of the recovery of Rs.15,000/- and the other amount. The members of CBI team told him that Rs.15,000/- was bribe amount. With respect to the documents, he could not say out of which documents, which one was recovered from the possession of accused P. K. Singh.
39. Therefore, testimony of this witness is at variance with the version of other witnesses. As per the prosecution case, the CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 27 of 74 -28- recovery of Rs.15,000/- was effected from accused P. K. Singh when accused Ravinder Singh was brought by other team of Inspector Sunil Dutt at Jaisalmer House, that too was effected by witness Arun Kumar Gupta. The testimony of this witness is not only at variance with the prosecution version but also unreliable as he is not consistent with his testimony in chief. In chief, he stated that he conducted search of the accused P. K. Singh and recovered Rs.15,000/-, and on being questioned by Ld. PP for CBI he stated that witness A. K. Gupta had conducted search and recovered Rs.15,000/- and again when he was cross-examined by the defence counsel he stated that he recovered Rs.15,000/- from the right pocket of accused P. K. Singh and accused Ravinder Singh was brought after 30 minutes of the recovery. Further, in examination-in-chief, he stated that accused Ravinder Singh had handed over documents twice that is initially and thereafter again at 2:00 p.m. and that at 3:45 p.m. he was instructed to enter the Jaisalmer House whereas in cross-examination he stated that he was already inside the Jaiselmer House at 3:45 p.m. Therefore this witness cannot be relied upon.
40. Now coming to PW-12 Sh. Arun Kumar Gupta. He stated that he had told in his statement recorded by CBI that Inspector Kailash Sahu told them that a transaction of Rs.15,000/- is to take place between Sh. Pradeep Kumar Singh, Section Officer, MHA, Jaisalmer House and Sh. Sunil Keshary through Sh. Ravinder Singh for extension of Visa of one Cambodian CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 28 of 74 -29- National. He was confronted with the statement wherein it was not so recorded, however, it was written that Sh. Kailash Sahu explained the purpose of gathering and contents of FIR alleging therein transaction of bribe amount of Rs.15,000/- pertaining accused Sunil Keshary of Russia Holidays Tours, Mumbai and Pradeep Kumar Singh, Section Officer, Foreign Division, MHA, Jaisalmer House, New Delhi through accused Ravinder Singh for extension of visa of one Cambodian National. So, this can hardly be called inconsistency or improvement, although there is only variation in words used by the witness. It is settled law that no witness is supposed to utter statement word by word. It is the content in the statement which is relevant and it cannot be called inconsistency. He stated that after reaching the spot i.e. Jaisalmer House only he alongwith Inspector Sahu entered the office of MHA and Sunil Kumar Vaid did not accompany them inside the office of MHA before 3:00 p.m. Nobody enquired them about the gate pass or the purpose of their visit in the office of MHA at the entry gate of MHA. He stated that he does not know as to how Inspector Kailash Sahu ascertained the identity of accused Ravinder Singh in the office of MHA. There were many other persons present at the hall where Ravinder Singh was found sitting by them and they all were talking with each other. There was little bit of noise in the hall due to the talking and other activities going in the hall. He was standing at a distance of 2-3 feet from the place where accused Ravinder Singh was CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 29 of 74 -30- sitting. Accused P. K. Singh entered the office of MHA from outside after 5 to 7 minutes from the time when they reached the office. He stated that he had not heard any other conversation between accused P. K. Singh and accused Ravinder Singh except whatever he has stated in his examination-in-chief. He voluntarily stated that portion was spoken by accused P. K. Singh in loud voice and as such he had heard the same. Further stated in his cross-examination that when Ravinder Singh left the office of Jaisalmer House at about 11:15 a.m. he and Inspector Kailash Sahu came outside the office of MHA and taken their position in a canteen and had taken their breakfast and tea. Nobody from the CBI team followed Ravinder Singh at that time. He stated that he himself had not noticed accused Ravinder Singh coming back at about 3:00 p.m., however, he was informed by CBI officials that Ravinder came back and entered the office of Jaisalmer House. He had also not seen Ravinder Singh coming outside the office of MHA after 03:00 p.m. and was informed by the CBI officials. He was confronted with the portion of his statement wherein it is not recorded that accused Ravinder Singh left the area of Jaisalmer House at 04:50 p.m. in a car and that they followed him in another car, however, it is mentioned that they followed accused Ravinder Singh upto Prakashdeep Building, Connaught Place. So, this also cannot be termed as glaring incosistency as it finds mentioned that they had followed him. He stated that Sunil Dutt received call CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 30 of 74 -31- from Kailash Sahu at 04:50 p.m. on his mobile phone. He further stated that he does not remember whether accused Ravinder Singh was driving the car himself or somebody else was driving the car in which he was sitting. He also does not remember the name of driver who was driving the CBI vehicle. Accused Ravinder Singh reached Prakashdeep Building within 10-15 minutes and accused parked his car in corner of a main road, in front of Prakash Deep Building. They had not followed accused Ravinder Singh inside Prakashdeep Building. They remained seated in the car and waited for him. Ravinder Singh came out of Prakashdeep Building within 4 to 5 minutes. Inspector Sunil Dutt received telephone call on his mobile phone from Kailash Sahu when accused Ravinder was coming out of Prakashdeep Building. Inspector Sunil Dutt apprehended accused Ravinder Singh outside Prakashdeep Building before he boarded the car. He stated that he does not know as to what happened to car of the accused. He further stated that he does not know as to what proceedings were going on or what proceedings had already taken place when they reached Jaisalmer House. Accused was completely searched in his presence. He does not know who searched the accused. Besides Rs.15,000/- some other amount was also recovered from his pocket, however, he does not know the total amount recovered from the pocket of Ravinder Singh other than Rs.15,000/-. He also does not remember as to whether the other amount was Rs.1000, Rs.
CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 31 of 74 -32- 10,000/-, Rs.15,000/- or more than Rs.30,000/- which was recovered from the pocket of accused Pradeep Kumar Singh alongwith Rs.15,000/- He also could not tell the denomination of these notes other than the denomination of Rs.15,000/-. He was confronted with portion of his statement regarding his statement that the recovered notes were shown to Ravinder Kumar Singh and he identified the same, wherein it is not so recorded. Therefore to this effect, this is improvement made by witness in his statement. He admitted that there were many other seats other than the seat of accused Pradeep Kumar Singh in the room where he used to sit and other officials used to sit on those other seats where in the room accused P. K. Singh was sat.
41. The testimony of PW-12 is in two parts, one in respect of initially visiting the Visa Information & Facilitation Centre where they identified the accused Ravinder Singh and P. K. Singh and subsequently they followed accused Ravinder Singh and apprehended him. Thereafter his testimony is with respect to recovery effected by him. However, in his cross- examination he stated that accused was completely search in his presence but he did not know as to who search the accused. He also could not tell the denomination of recovered amounts other than Rs.15,000/-, which was allegedly recovered by him. The witness even could not tell by guess as to whether the other amount was Rs.1000/-, Rs.10,000/-, Rs. 15,000/- or more than Rs.30,000/-. He would have CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 32 of 74 -33- remembered as to what was the remaining amount recovered from the possession of accused P. K. Singh other than tainted amount. Further he did not state regarding any document having been recovered from accused Ravinder Singh. The memorandum of recovery Ex.PW-3/A, also does not mention any document having been recovered from accused Ravinder Singh. Although Arrest-cum-Personal Search Memo of accused Ravinder Singh, Ex.PW-3/D finds mentioned passport of Noeurm Sopheap found in person of the accused.
42. PW-20 Sh. Sunil Dutt stated in his cross-examination that on 17.01.2012, he was carrying his mobile phone no.9650394832 and it remained in his possession during whole day and he used it on that day. He stated that source was not contacted in his presence by Inspector Kailash Sahu. He has no knowledge as to how, when and where Inspector Kailash Sahu contacted the source. He denied the suggestion that his location on 17.1.2012 was at Aurengjeb Road at 10:10 a.m. and as such question of leaving CBI office does not arise. He stated that they had not left the spot and remained in the vicinity of Jaiselmer House till 3:00 p.m. when accused Ravinder Singh again came back there. He denied the suggestion that his location was at Delhi Gate at about 11:39 am and at Tilak Bridge at 11:45 a.m. at Andhra Pradesh Bhawan at 2:31 p.m. on 17.1.2012. He stated that accused was travelling in Innova Car with one driver and he did not remember the name of the driver and voluntarily stated that the name of the driver must CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 33 of 74 -34- be mentioned in the documents prepared by CBI. After the apprehension of accused Ravinder Singh on 17.01.2012, the driver of Innova car also accompanied them till Jaiselmer House. The factum of driver with car was mentioned in arrest cum search memo Ex.PW-3/D as Sanjay s/o Sohan Lal. He was also questioned regarding his presence at various times e.g. at Andhra Pradesh Bhawan at 3:39 p.m., Akbar Road at 3:56 p.m., Nirman Bhawan at about 4:20 p.m., Aurengjeb Road at about 4:25 pm or K. G. Marg at about 4:58 p.m. He stated that the accused was chased in official car for about 10 minutes. Before entering into Prakash Deep Building, the vehicle make Innova Car was parked by the driver alongwith road side and accused Ravinder Singh entered into Prakash Deep Building and the driver remained with the car. He could not say where and on which floor of Prakash Deep Building, the accused Ravinder Singh visited. He stated that after about five minutes, accused came outside Prakash Deep Building. Accused informed them that his office is at Prakash Deep Building and they had not verified this fact. He admitted that amount of Rs.33900/- was recovered from the possession of accused P. K. Singh and stated that the amount include tainted amount of Rs.15,000/- given by accused Ravinder Singh. He stated that he did not see the accused Ravinder Singh handing over any amount to accused P. K. Singh at any point of time on 17.1.2012 and stated that he cannot say whether any other member had seen or witness such transaction.
CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 34 of 74 -35-
43. Ld. Defence counsel has pointed out regarding his presence in his CDR at a different places then his position as per the prosecution case. The call details record was proved by the DW-2 Sh. Sameer Raj Singh. DW-3 Sh. Aditya Jha, Nodal Officer, Bharti Airtel Limited has been examined to prove original call details record pertaining to Dy. S. P. Sunil Dutt and as per record he had given Cell Ids at different places. Ex.DW-2/B is with respect to Cell Ids. As per the Cell Ids, the location of Inspector Sunil Dutt was not found near Jaiselmer House. But the question arises as to whether the presence, as per the Cell Ids, is conclusive. As per Cell Id No.114 and 48463, at 11:03 a.m. the location is at Aurengjeb Road and Pandara Road. As per Cell Id No. 7334, at 11:39 am, the location is at Delhi Gate. However, if one perused the Cell ID Nos. 3471, 3472 and 3473, they are of the same place i.e. K. G. Marg. Similarly, from 31346 to 31373 is of the same location i.e. Palika Bazarj. Again from Cell No. 48461 to 46464 are of the same location i.e. High Court of Delhi and 48461 are two cell IDs and similarly 48462, 48463 and 48464 are also having two IDs each. Therefore, it is not certain which of the ID the mobile would catch if the person is within the vicinity of that mobile tower. Therefore, it cannot be conclusively said that the mobile user will be present at that position only which ID of the mobile tower depicts. Moreover, the location shown is not far away from the Jaiselmer House. Further as per call details record at the material time around CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 35 of 74 -36- 5:00 p.m., it matches with the time where he was situated between two ID cells. At material points the location of the witness has been same i.e. at the time of apprehension of the accused Ravinder Singh his presence was the same, which rather corroborates version of Sunil Dutt that he had apprehended the accused at Prakash Deep Building.
44. PW-13 Inspector Kailash Sahu stated in his cross-examination that no source was available in the office of CBI on 17.1.2012 and he contacted the source through SP and the source met him at Jaiselmer House on 17.01.2012. He stated that the factum regarding Ravinder Singh had got the gate pass issued at Jaisalmer House at 9:25 a.m. and had also made computerized application form for visa related services at about 10:00 am on 17.01.2012 was told to him by SP who gathered the said fact through source in his presence. He stated that he was not having telephone number of the source on 17.01.2012 and whether the source was having his mobile number or not and that whether he had any telephonic conversation with the source on 17.01.2012. He states that besides him and witness Sh. Arun Kumar Gupta, none other accompanied them inside the Visa Facilitation Center at first floor, at about 11:00 am. The witness Sh. Arun Kumar Gupta remained present with him at that time. When the source met him inside the office of Visa Facilitation Center, the witness Sh. Arun Kumar Gupta was near to him but was in discreet manner. The source talked to him for about 1-2 seconds and CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 36 of 74 -37- he figured out the accused Ravinder Singh to him. He approached the source when he entered the Visa Facilitation Center as SP had given the details of the source to him before reaching there. There were around 25-30 people available at the place where the source met him and out of 25-30 people, he identified the source within 2 minutes. The source remained with them in or around Visa Facilitation Center till 6:00 pm on 17.01.2012. He further stated that when accused Ravinder Singh left the office at 11:20 a.m., he alongwith witness Arun Gupta followed him till the exist gate. He admitted that he did not witness any transaction of money. He had not interrogated the official who made corrections in the Visa Application Form at the behest of accused Ravinder Singh after 3:00 pm at any point of time. The second application was procured by accused Ravinder Singh after making corrections after 3:00 pm. He has categorically stated that witness Sh. Sunil Vaid had not entered facilitation centre before 3:00 p.m. at any point of time. He stated that accused Ravinder Singh got the photocopies of his driving licence and passport of Cambodian national from the ground floor where the photocopy counter was located, which was owned by the private person. He did not record the statement of the person who had photocopied the documents after 3:00 pm on the request of the accused Ravinder Singh, nor he had interrogated that person. He stated that he cannot say whether as per the Call Detail Report of Inspector Sunil Dutt, he (Sh. Sunil Dutt) has not received CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 37 of 74 -38- any call from his (Sh. Kailash Sahu) cell phone number at about 4:50 pm and voluntarily stated that he had not seen the CDR of Inspector Sunil Dutt. He stated that after the gap of about 15 minutes, when accused Ravinder Singh left the Jaisalmer House, source informed him that the transaction of bribe has taken place. Immediately, he made a telephonic call to Inspector Sunil Dutt and instructed him to apprehend and interrogate accused Ravinder Singh. By that time accused Ravinder Singh was not apprehended by Inspector Sunil Dutt. At that time Inspector Sunil Dutt informed him that he was at Connaught Place area. He did not know as to by which mode and with whom, accused Ravinder Singh reached Connaught Place area. He does not remember whether the fact that Ravinder Singh was using a car on 17.01.2012, was brought to his knowledge by anyone at any point of time. (Arrest-cum- Personal Search Memo of accused Ravinder Singh finds mentioned name of the driver and registration number of car). He stated that he challenged accused Pradeep Kumar Singh at about 5:30 pm and there were 1-2 persons present at Visa Facilitation Centre at that time. They had not recorded disclosure statement of any of the accused. No one used the seized phone of accused persons after their seizure by him.
He admitted that in the Hall where accused Pradeep Kumar Singh had his seat, other officers also used to sit. He did not seize the register/ file from which Rs.17,000/- were taken.
CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 38 of 74 -39-
45. As regards the source, Ld. Defence Counsel submitted that in one and two minutes the source cannot be identified and source cannot remained with them throughout the whole day as source is to be kept away from suspects.
46. One and two minutes are adequate to identify the source as police officials are trained in the manner to identify their own source. Further the source in the case of PC Act would be quite different from the source of Narcotics' cases. The life of source would be at risk in narcotics cases if he gets identified by the accused whereas in PC Act's cases by very nature of office, public servant are not aggressive or dangerous therefore there is nothing unusual that source remained with them throughout the day. Therefore these cited judgments are not applicable to the facts of the present case.
47. From the testimony of these three witnesses namely Sh. Arun Kumar Gupta, Sh. Sunil Dutt and Sh. Kailash Sahu, it is established that accused Ravinder Singh was followed by Sh. Sunil Dutt and Sh. Arun Kumar Gupta upto the Prakash Deep Building, was apprehended from Prakash Deep Building and after apprehension, the accused was brought back to the office of MHA.
48. However, as regards the recovery of Rs.15,000/-, there are inherent inconsistencies in the testimony of the witnesses. Other independent witness Sh. Sunil Kumar Vaid not having been found trustworthy. The testimony of another public CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 39 of 74 -40- witness Arun Kumar Gupta is also not trustworthy with respect to the recovery having been effected by him as he has even failed to tell by guess as to how much amount was recovered other than tainted amount of Rs.15,000/- from the possession of accused P. K. Singh whether it was Rs.1000, Rs.10,000/-, Rs.15,000/- or more than Rs.30,000/-. Further, in his cross- examination, Sh. Arun Kumar Gupta categorically stated that the accused was completely searched in his presence and he does not know who searched the accused contrary to the prosecution case that accused Arun Kumar Gupta himself had conducted search of the accused P. K. Singh and recovered Rs. 15,000/- from his pocket. Then who was the person who conducted such search ? It is unanswered. Therefore this portion of evidence is not established beyond reasonable doubt.
49. Now coming to the version of witness Sh. Arun Kumar Gupta that he overheard P. K. Singh telling accused Ravinder Singh to come after lunch with fee. He has voluntarily stated in his cross-examination that this portion of conversation was spoken by accused P. K. Singh in loud voice and as such he heard the same. This fact by itself would show that this witness is trying to make improvement over his previous statement. As like in the present case where deal is already struck, the bribe taker would not speak in louder voice and he is not required to do so. It also casts doubt about the version of this witness.
CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 40 of 74 -41-
50. It is also submitted by Ld. Defence Counsel that public witnesses are told by circular of CVC to stand by the version of CBI otherwise they shall face departmental action. As regards this submission, the version of witness Sunil Kumar Vaid itself showed that this circular of CVC is followed more in defiance than its compliance. Sh. Sunil Kumar Vaid has completely given different version with that of CBI. Therefore the submission of Ld. Defence Counsel is without any substance.
51. Further, as regards the testimony of witnesses that accused Ravinder Singh has disclosed that he had paid bribe of Rs.15,000/- to accused P. K. Singh, out of which 13 notes are in the denomination of Rs.1000/- each and 4 notes are in the denomination of Rs.500/- each. Admittedly no disclosure statement was recorded either of the accused. Therefore this portion of statement which was made in the custody of police while he was apprehended by Sh. Sunil Dutt, CBI Officer is inadmissible in evidence.
LINK EVIDENCE
52. PW-17 Sh. Ramesh Narayan Das Khatri testified that in the year 2012, he was working in Global Visa Services for making entries in the Dispatch Register and proved the same as Ex.PW-17/A. He deposed that entry at point X to X at page no.103 of the said register is in his handwriting and through the above, parcel, one passport and papers by Noaman were CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 41 of 74 -42- sent vide Airway Bill 4442602619 through Blue Dar Courier Services.
53. As per Ex.PW-17/A, entry at point X to X, it is mentioned that 1 parcel prepared for Bina Keshary New Delhi 09999779114, 1 passport + papers by Noaman AWB No. 44426026190. On the perusal of the register, one finds that the register is maintained from 19.09.2011 to 10.03.2012 and contains entries regarding dispatches and it appears that the register is regularly maintained in usual course of business. There is no cross-examination of this witness, therefore, this stands proved.
54. PW-19 Sh. Oscar Fernandes testified that he has been working with Blue Dart Courier since 1991 and was promoted as Operational Manager in the year 2008 and had handed over some documents to CBI through covering letter and proved the letter dated 13.12.2012 as Ex.PW-19/A vide which he had handed over documents mentioned in letter to Dy. Superintendent of Police, CBI. After having seen the certified copy of image copy of Airway Bill No. 44426026190, he stated that the said airway bill was sent by M/s Global Visa Services on 12.1.2012 to Russia Holidays Tours, E-69, C Gangotri Enclave, Alakhnanda, Delhi-110019 and the said parcel was received on 13.01.2012 by one Sh. Akshar at the given address. He stated that the Airway Bill bears his signature and seal of Blue Dart Express Ltd. and proved the CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 42 of 74 -43- Airway Bill as Ex.PW-19/B. He also stated that the details provided vide his letter are correct and based on company records. He was cross-examined. He denied the suggestion that no such record as deposed by him exists.
55. As per Ex.PW-19/A, the name and address of the shipper is mentioned as "GLOBAL VISA SERVICES, JIWAJI LANE, FORT, 14/2, FAZAL MANSION, MUMBAI Pin : 400001"
and consignee name and addressed is mentioned as " Russian Holidays Tours, E69C Gangotri Enclave, Alaknanda, Delhi-110019" and name of the Recipient of the Shipment is mentioned as "AKSHAT". Image copy Ex.PW-19/B also finds mentioned similar facts. Therefore, this proves that the documents were sent by Global Visa Services through Blue Dart Courier Ltd. And was received at E69C Gangotri Enclave, Alaknanda, Delhi-110019 by one Akshat.
56. However, this link evidence leaves many questions unanswered, as to who is Akshat, who received parcel sent from Bombay, on behalf of Bina Keshary and it is also not brought on record as to how this documents have reached to accused Ravinder Singh. Therefore, this link evidence does not lead us anywhere.
Whether the application for extension of visa for Cambodian National was dealt with by accused P. K. Singh ?
57. Lets first examined the evidence of witnesses from Foreigners CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 43 of 74 -44- Division, Ministry of Home Affairs.
58. PW-1 Sh. Yogesh Sharma, UDC, Foreigners Division, Ministry of Home Affairs testified that as part of his duty, he goes through the documents for visa extension of the foreigners and thereafter after processing the file send it to the superior officer. He stated that he knows Sh. Anil Kumar who was his Section Officer. On 17.1.2012, he was deputed to conduct interview in the Visa Hall by his section officer and was present in the Visa Hall till 1:00 p.m. He stated that he had conducted interviews on that day. Many officials of other Sections such as F-2, F-5, F-6 and F-7 were also present in the Hall of the said purpose. He stated that as far as he remembers he had collected the papers of Burmese Nationals and kept the papers on the table and went to his Section for Lunch and had requested Sh. Mishra, UDC to take over the seat. He stated that he knows accused Pramod Kumar Singh (it should be Pradeep Kumar Singh), who was the then Section Officer of F-7 Section and was present on that day in Visa Hall who was also processing his cases. He stated that on that day, he (witness) had not conducted any interview and processed any case relating to Cambodian National and when he left for lunch there was no paper of Cambodian National pending on the seat allocated to F-4 Section in Visa Hall.
59. PW-4 Sh. Shashi Bodh Mishra, UDC, MHA testified that on 17.1.2012, at around 1:00 p.m. his colleague Sh. Yogesh CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 44 of 74 -45- Sharma, UDC of his section came to him with a request to process some cases in Visa Hall as he wanted to go for lunch. He stated that when he reached the Visa Hall, he saw two persons who were Tibetan refugees and Mayanmaar Refugees and also saw two applications i.e. One of Mayanmaar Refugee and other of Cambodian National were kept on his table. He corroborated PW-1 regarding presence of P. K. Singh at his seat in Visa Hall. He first took interview, thereafter processed the aforesaid two applications i.e. of Mayanmaar Refugee and Cambodian National on the basis of attached documents, which were found to be sufficient for processing the case and stated that he made noting in the computer and submitted the same to his Section Officer from his ID to the ID of the Section Officer. He proved the documents [D-9) (i) to (xi)] as Ex.PW-4/A, on the basis of which he processed the file.
60. PW-1 Sh. Yogesh Sharma in his cross-examination stated as per procedure in their office, the application for visa extension or any other work has to be filled up at the specific counter where the details of the applications of the applicants were filled in a computer system and the printout of the application alongwith the necessary annexures were handed over to the applicant with a specific direction to approach the concerned section. Accused P. K. Singh was not at all concerned with the working of that section. Further, he stated that thereafter the applicant is (sic) to go to the concerned section mentioned in the application form and to deposit the application alongwith CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 45 of 74 -46- documents to the Section and at the concerned section, the request was processed online by the officer sitting at the Section. The prayer of the application or the purpose for which the application was moved has to be dealt with by the Superior Officers online and the person who was sitting on that Section and processing the application has no control over the decision to be made by the Superior Officers. Thereafter the orders passed on the application were directly sent to the FRRO Branch through online. He admitted that the order made by the Superior Officers on the application are not handed over to the applicant or its representative. He has categorically stated that accused P. K. Singh has never approached him in respect of application Ex.PW-3/E. He however denied the suggestion that application Ex.PW-3/E was not dealt with by him before lunch.
61. PW-4 Sh. Shashi Bodh Mishra also cross-examined and similarly stated that accused P. K. Singh had never approached him in respect to the visa extension application of the Cambodian National and has no concerned with that Section. He also stated that grant of visa, extension of visa and permission to exist are all three different things and if anyone apply for extension of visa and was granted permission to exit, it means that his prayer for extension of visa has been rejected. He stated in respect of Ex.PW-6/DA and Ex.PW-3/E that applicant namely Sopheap Noeurm of Cambodian was not granted extension of visa, in fact she was directed to exit the CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 46 of 74 -47- country by 11.2.2012. He also stated that the application Ex.PW-3/A was generated in his office at 10:00 a.m. On 17.1.2012 and all the relevant documents were submitted at the time of generation of the application including passport etc. of the applicant.
62. Therefore, from the testimonies of these two witnesses, it has been established on record that accused P. K. Singh has no concerned with visa related services to Cambodian Nationals. It is also established that the application for extension of visa was dealt with online and the officer superior to the section officer is competent to take decision and it is also taken online and sent to concerned FRRO online directly. It is also established that accused P. K. Singh has not approached them to influence their decision for processing of the application and that the visa was not extended rather rejected. The application was processed before 3:00 p.m. Therefore, it belies the version of CBI that accused Ravinder Singh was asked to come after lunch and some documents were got photocopied by him.
Intercepted Calls & Call Detail Records
63. Now we are left with evidence of recorded conversation.
PW-13 Inspector Kailash Sahu testified that on 18.1.2012, he seized some documents and the CD containing call details pertaining to this case from Sh. M. C. Kashyap, Dy. Superintendent of Police, Special Unit CBI vide seizure CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 47 of 74 -48- memo. On 19.1.2012, he obtained specimen voice of accused Pradeep Kumar Singh and accused Ravinder Singh vide Specimen Voice Recording Memos Ex.PW-9/A and Ex.PW-9/B respectively and CDs Mark S-1 and S-2 was prepared regarding same respectively. He also stated that in the presence of independent witnesses, both the accused persons gave their specimen voice voluntarily, which was recorded in a DVR after ensuring its emptiness, and the same were transferred and copied in two separate blank CDs through an official laptop. He identified each parcel Ex.PW-9/C and Ex.PW-9/F each containing CD as Ex.PW-9/B and Ex.PW-9/E respectively. Further, he stated that on 20.1.2012, he obtained specimen voice of accused Sunil Keshary vide Specimen Voice Recording memo Ex.PW-13/B and identified parcel and CD as Ex.PW-13/C and Ex.PW-13/D respectively.
64. PW-21 Sh Sunil Dutt, Dy. S.P., CBI was examined in respect of other documents as IO was not available in India and identified his signatures. He proved forwarding letter dated 08.02.2012 alongwith certificate sent to CFSL as Ex.PW-20/A (Colly), letter dated 10.04.2012 as Ex.PW-16/A, which were objected to on the mode of proof. He further stated that Sh. Raj Singh, the then Dy. S. P. CBI, ACB, New Delhi who is presently posted at CBI, AC-III, New Delhi has gone on a UN Mission in Liberia and can identified his signatures as he has worked with him and proved Voice Identification-cum- Transcription Memo Ex.PW-6/A, Production-cum-Seizure CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 48 of 74 -49- Memos dated 28.02.2012, 29.02.2012 and 12.12.2012 as Ex.PW-8/D, Ex.PW-8/E and Ex.PW-20/C respectively and transcription memo dated 13.06.2012 as Ex.PW-20/B.
65. PW-6 Sh. P. Shankar, was examined, who testified that Voice Identification-cum-Transcription Memo dated 14.02.2012 Ex.PW-6/A was prepared in his presence. He identified accused P. K. Singh. He stated that transcription consisting of 13 sheets was already prepared and he had put his signatures on the same on the asking of CBI and proved the same as Ex.PW-6/B. However, when CD was played and he was asked to identify the voice of accused P. K. Singh, he stated that it sounded like the voice of P. K. Singh but he was not sure and had signed the memo Ex.PW-6/A without going through the same. He was declared hostile by the prosecution. He was cross-examined at length by the prosecutor but he denied that he had identified the same and stated that he had no regular talk with P. K. Singh at the relevant time as such he was not so acquainted with the voice of P. K. Singh and categorically stated that he cannot identify his voice.
66. Similarly, PW-18 Sh. Devender Kumar also failed to identify the voice of accused P. K. Singh.
67. PW-15 Sh. Sukhbir Singh Sodhi testified that on 20.1.2012 he visited the CBI Office on the directions of his seniors and after waiting for sometime he was informed that he had to be a part of member of voice sample proceedings. He stated that first of CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 49 of 74 -50- all, his introductory voice was recorded in the official laptop with the help of headphone and thereafter the voice sample of accused Sunil Keshary was recorded and he identified the accused Sunil Keshary in the court. Thereafter, one blank CD was arranged and the voice recorded in the laptop was then transferred in the blank CD which was covered with a white cloth wrapper and then sealed with the help of CBI brass seal. He further stated that the Specimen Voice Recording Memo was prepared which was signed by him and proved the same as Ex.PW-13/B. He identified his signatures on cloth parcel, inlay card and CD. Ld. Defence counsel objected to the same as there is no Certificate u/s 65-B of Indian Evidence Act.
68. PW-9 Sh. Anurag Aggarwal, stated that on 19.1.2012 as per direction, he reached CBI office at around 10:00 a.m. and was informed that in his presence specimen voice recording was to be done. One DVR was arranged. Thereafter accused P. K. Singh was asked whether he is willing to give his specimen voice to which he had replied in affirmative and thereafter a written text was handed over to the accused and accused was directed to read the text three times and accused had accordingly read the same thrice and the same was recorded in the DVR and thereafter his (witness) introductory voice was recorded in DVR. Thereafter one blank new sealed CD was arranged and contents of the DVR was transferred into that blank CD and thereafter the CD was sealed in a white cloth parcel and he appended his signatures on cloth parcel and he CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 50 of 74 -51- proved Specimen Voice Recording Memo as Ex.PW-9/A and he also proved CD as Ex.PW-9/B. Further, he stated that in the same manner as deposed to by him in respect to accused P. K. Singh, the specimen voices of accused Ravinder Singh was also recorded in a new DVR which was transferred into a new blank CD after recording his (witness) voice at the beginning as well as in the end. Both CDs were not having Certificate u/s 65-B of Indian Evidence Act.
69. PW-10 Sh. M. C. Kashyap testified that in January, 2012, telephone no. 98717-80406, 98338-68880 (Sunil Keshary) and 98181-25424 (Ravinder Singh) were put on interception. On 18.1.2012 on receipt of information that a case was registered at ACB, CBI, Delhi against P. K. Singh and others and on the basis of facts of the case 36 calls which were found relevant according to the facts of the case were segregated and were handed over through Seizure Memo to the Investigating Officer Kailash Sahu. These 36 calls were exported or burnt on a CD from the said voice logger and a recorded call information report in respect of said 36 calls were kept in a packet and sealed. A true copy of the said CD was also prepared and that CD alongwith recording call information report was given in unsealed condition to the IO for day to day investigation. Before sealing the CD, the RC No., 36 calls and his signatures were put on the CD. He also stated that three original orders in respect of the above mentioned three telephone mobile numbers which were put under interception CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 51 of 74 -52- were also given. A certificate under Section 65-B of Indian Evidence Act, in respect of said 36 calls were also given to the IO alongwith a annexure which contained the details of the said 36 calls. He proved the certificate u/s 65-B of Indian Evidence Act as Ex.PW-10/A and Annexure A as Ex.PW-10/B and identified his signature on cloth parcel Ex.PW-10/C and on CD Ex.PW-10/D.
70. PW-21 Dr. Rajinder Singh, Director, CFSL testified that on 08.02.2012 he received four sealed parcels from CBI and parcels were marked by him Q-1, S-1, S-2 and S-3 and the parcel Q-1 was found to be containing a compact disc which had 56 (it should be '36', and it appears that '56' was wrongly typed) audio files and these files stated to have questioned voice recordings of accused Pradeep Kumar Singh, accused Ravinder Singh and accused Sunil Keshary and parcels S-1, S-2 and S-3 were found to be containing compact disc stated to have specimen voice recordings of above said accused persons. He after seeing forwarding letter dated 8.2.2012 Ex.PW-20/A stated that vide, which he, has received the CDs from CBI. He stated that he examined the questioned voices of accused Pradeep Kumar Singh, accused Ravinder Singh and accused Sunil Keshary with respect to their specimen voices by auditory and voice spectographic technique and he found questioned voice recording of accused Pradeep Kumar Singh, accused Ravinder Singh and accused Sunil Keshary were tallied with the respective specimen voices containing in CD CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 52 of 74 -53- marked as S-1, S-2 and S-3 in respect of their linguistic, phonetic and other general spectographic parameters and he proved his report dated 18.06.2012 as Ex.PW-21/A.
71. PW-14 Sh. Anuj Bhatia, Nodal Officer, Vodafone Mobile Phone Services Ltd. Testified that he knows Sh. Deepak Tomar, who was working under him as Alternate Nodal Officer. He stated that he can identify handwriting and signature as he has seen him writing and signing in the official capacity and Sh. Deepak Tomar had left the job around six months back. He also stated that he knows Sh. Nishant Shet, who is Nodal Officer at Mumbai and also identify his signature and handwriting as he has seen him writing and signing in the official capacity. He identified signatures of Sh. Deepak Tomar on forwarding letter dated 31.01.2012 Ex.PW-14/A, vide this letter, duly certified customer application for and CDRs of mobile no.9833868880 were also forwarded. He also identified signatures of Sh. Vikas Phulkar, Alternate Nodal Officer, Mumbai Circle at point 'A' on the Certificate u/s 65 B of Indian Evidence Act Ex.PW-14/B, on certified copy of CDR Ex.PW-14/C and of CAF Ex.PW-14/D and certified copy of licence and telephone bill and documents of accused Sunil Keshary Ex.PW-14/E (Colly).
72. He also stated vide letter dated 20.6.2012 Ex.PW-14/F he had forwarded detail of mobile no. 98201-93375 of Mumbai Circle to CBI and certificate dated 12.6.2012 Ex.PW-14/G which CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 53 of 74 -54- bears signature of Sh. Vikas Phulkar. He also proved Certificate u/s 65 B of Indian Evidence Act dated 12.06.2012 in respect of mobile no. 98201-93375, which bears signatures of Sh. Vikas Phulkar, Alternate Nodal Officer, as Ex.PW-14/H; customer application form in the name of Tinwala Hashan Jafar and the supporting documents and Sim Replacement Form submitted during subscription of the above stated mobile number as Ex.PW-14/J (Colly), CDR as Ex.PW-14/K, having initials of Sh. Vikas Phulkar.
73. PW-2 Sh. Vishal Gaurav, Nodal Officer was examined, who testified that vide letter dated 12.3.2012 CAF, CDRs of mobile nos. 98181-25424, 98717-80406 and certificate u/s 65-B of Indian Evidence Act were forwarded to CBI and proved the same collectively as Ex.PW-2/A and stated that documents bear the signature of Sh. Tarun Khurana, the then Nodal Officer, Bharti Airtel Ltd. He stated that the mobile no. 98181-25424 is registered in the name of accused Ravinder Singh.
74. He was cross-examined and in his cross-examination he stated that the CDR of both the aforementioned phone numbers was retrieved/ extracted by the Nodal Officer on 07.3.2012 at 1:32:14 pm and 1:33:00 pm and he stated that by the word 'retrieve/extract' he means that it is at the given time only, the Nodal Officer accessed the main server containing the data relating to the telephone numbers and at the same time he got CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 54 of 74 -55- the print out directly from the server of the company. He said that this CDR and the data were not retrieved or extracted before 07.3.2012. The endorsements on encircled portion B on both the CDRs reflect the path wherein the data was stored in D-drive of the computer and these endorsements further show the place where the data was saved in their computer after its retrieval from the server and before regeneration of print out. He stated that as this record pertains to a computer related to Sh. Tarun Khurana, he cannot say whether the said computer was working property or updated correctly. He admitted that these endorsements reflect that this folder wherein the data pertaining to the aforementioned phone numbers was saved, pertains to January, 2012. The main server of their company is installed in Noida and is looked after by another department and other employee of their company. He stated that he cannot say whether the main server was working in a proper way at the relevant time when the data pertaining to aforesaid phone numbers were stored or were extracted by the Nodal Officer of their company. He has no knowledge about the specification of the system/server installed at Noida. He has never seen the main server of the company. Sh. Tarun Khurana has left the job. He also could not give the specification of the computer used by Mr. Tarun Khuran and also could not state whether the computer system from which this record was extracted, was working properly and for what other purpose the said computer system was being used by Sh. Tarun Khurana. He CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 55 of 74 -56- also admitted that certificate u/s 65-B of Indian Evidence Act Ex.PW-2/A does not disclose the identity of the computer system of Sh. Tarun Khurana nor it disclose the other purposes for which the said computer was being used in regular course of official work. He also admitted that this certificate also does not disclose as to whether the system was working properly during the relevant period or not, whether there was any technical error or fault occurred in that system during the relevant period or not.
75. PW-14 Sh. Anuj Bhatia, in his cross-examination, stated that the printouts of the CDR pertaining to Mumbai mobile number was taken out from Mumbai by Vikas Phulkar, Alternate Nodal Officer of Mumbai Office of Vodafone. The CDR and other documents were received through courier from Mumbai Office to his office at Delhi. The courier delivers documents minimum 24 hours and maximum 48 hours. The CDR pertaining to mobile phone no. 983-386-8880 was taken out from the computer at Mumbai by the Mumbai staff at about 12:33:13 on 31.01.2012. With respect to question that when the printout was taken at about 12:33:13 on 31.01.2012, then how the documents/ CDR reached to the office at Delhi on 31.01.2012, especially when he has stated that minimum 24 hours are taken for sending mail from Mumbail to Delhi, he stated that may be the covering letter Ex.PW-14/A contains wrong date. He stated that seal of Mumbai office is used only by Mumbai Office by the officials of Mumbai Office and CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 56 of 74 -57- similarly the seal of Delhi Office is used only by Delhi Office. He does not have the seal of Vodafone, Mumbai Office at their Delhi Office. In reply to question as to how the documents i.e. certificate u/s 65-B Indian Evidence Act, Ex.PW-14/B, bear the seal of Delhi Office, he stated that the document was not bearing seal of Mumbai Office and therefore the seal of Delhi Office was affixed at the time of handing over same to CBI. He did not tell in his statement the above fact. They did not make any effort to rectify the same. He voluntarily stated that CBI was pressing for the documents and therefore they put seal of Vodafone, Delhi Office which is part of Vodafone also the document is system generated and does not require any signature and seal. He stated that Mr. Vikas Phulkar has now retired from the services of Vodafone. He denied the suggestion that because of manipulation and fabrication done at their end in Delhi Office under the pressure of CBI, they did not produce Mr. Vikas Phulkar as a witness in the court. He admitted that he had stated in his statement u/s 161 Cr.PC that documents received from Mumbai i.e. CDR of Mobile No. 98338-68880 and certificate u/s 65-B of Indian Evidence Act were attested/signed by Sh. Nishant Shet, Nodal Officer, Vodafone, Mumbai and voluntarily stated that since it was only initial on the documents, he misunderstood that it were sent by Nishan Shet, but in fact it was of Mr. Vikas Phulkar. The initials of Mr. Vikas Phulkar and Nishant Shet are not the same and voluntarily stated that he got confused when his CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 57 of 74 -58- statement was recorded u/s 161 Cr.PC. Further stated that certificate Ex.PW-14/G does not mention Section 65-B or the word Evidence Act nor mentions specification of the computer used and whether the computer was functioning properly during the relevant period. It also not mentioned whether Mr. Vikas Phulkar was holding any responsible post in the office. Similarly the certificate Ex.PW-14/H does not mention Section 65-B or the word Evidence Act nor mention specification of computer or whether Mr. Vikas Phulkar was holding any responsible post in the office.
76. The testimonies of these two witnesses have been assailed on two parts, one with respect to the fact that handing over of the documents give some different date when he was actually sent from Mumbai. Secondly, initially it was stated that it was initial of Nishant Shet whereas later on it was found that it was signature of Sh. Vikash Phulkar and this witness admitted that he had wrongly stated so in the statement u/s 161 Cr.P C. In view of this, testimonies of this witness cannot be trust worthy. Seal on the documents received from Mumbai Office were not having Mumbai Office Vodafone seal, it was having seal of Delhi Office Vodafone. Therefore testimony of witness Sh. Anuj Bhatia does not inspire confidence.
77. Further as regards certificate u/s 65-B in respect of both. It is worthwhile to mention that the certificate Ex.PW-14/B reads as under:-
CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 58 of 74 -59- CERTIFICATE (u/s 65B(4)(c) of the Evidence Act 1872). Certified that this CDR of Mobile Number - 9833868880 has been produced from computer system using printer and its contents are true reproduction of the original to the best of my knowledge and belief. Further certified that conditions as laid down in section 65B(2)(a) to 65B(2)(d) of Evidence Act, 1872 regarding the admissibility of computer output in relation to the information and the computer in question are fully satisfied in all aspects.
Signature seal and initial Designation Nodal Officer
78. The Certificate Ex.PW-2/A reads as under :
Certificate u/s 65-B of Indian Evidence Ac It is certified that the information pertaining to below mentioned mobile enclosed herewith in the form of Hard Copy is a true extract of the relevant date created in the usual and ordinary course of business and stored on the designated Hard Disk of the Computer/Systems of the company.
Mobile Number - 9818125424, 9871780406 Period - 01-Jan-2012 TO 17-Jan-2012 It is further certified that to the best of my knowledge;
That the Access to the Computer System and the data stored thereon is controlled by defined authorized roles exercised through unique user- id and the associated passwords. Only the concerned user knows the password the use of ID with password establishes his identity and accountability.
For Bharti Airtel Limited CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 59 of 74 -60- Seal with initial and date 12.3.2012 Nodal Officer (Tarun Khurana).
79. Ld Defence Counsel has objected to proving of CDs in which specimen voice of accused persons has been recorded regarding same not having Certificate u/s 65-B of India Evidence Act. With respect to call details records with regard to mobile number of accused persons namely Sunil Keshary and Ravinder Singh alongwith documents downloaded from computer regarding customer application form (CAF) and supported document, it is submitted that the Certificate u/s 65-B of India Evidence Act is defective. Similarly, Ld. Defence Counsel has also questioned the Certificate u/s 65-B of India Evidence Act given by PW-10 Sh. M. C. Kashyap in respect of intercepted conversation recorded.
80. Firstly, I shall take up the issue in respect of question of Certificate u/s 65-B of India Evidence Act. What are conditions to make electronic record admissible ? The Hon'ble Supreme Court of India in case titled as Anvar P. V. v. P. K. Basheer and Others, (2014) 10 SCC 473, observed that electronic record is admissible in evidence if it is accompanied by a certificate. To quote :-
...Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:
(a)There must be a certificate which identifies the CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 60 of 74 -61- electronic record containing the statement;
(b)The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record;
(d)The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
81. In view of the law laid down in respect of electronic records, which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer, if the same is accompanied with required Certificate u/s 65-B of India Evidence Act, then same would be treated as document and would be admissible in evidence. Admittedly, the CDs prepared after the recording of the specimen voice of accused persons do not contain requisite Certificate u/s 65-B of India Evidence Act and in the absence of the same i.e. Certificate by the maker of the CD, the same cannot be proved and is inadmissible in evidence.
82. As regards calls details record, which is also a electronic record, generated from the computer and downloaded through computer. The customer application form alongwith other documents, which are also downloaded documents require accompanying Certificate u/s 65-B of India Evidence Act.
CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 61 of 74 -62-
83. The Certificate u/s 65-B of Indian Evidence Act Ex.PW-14/B is in respect of CDR & CAF of mobile phone of accused Sunil Keshary. The Certificate mentions that this is a certificate in respect of mobile Number - 9833868880 and mentions that conditions laid down in section 65B(2)(a) to 65B(2)(d) of Evidence Act, 1872 are fully satisfied. In respect of CAF and other supporting documents, which are also electronic record, the Certificate Ex.PW-14/B does not identify those electronic record. It identifies the CDR only. However, as regards manner of the production of the record, it is mentioned that it has been taken by using printer without its particular. The certificate also does not mention that the computer was regularly used and information was regularly fed and computer was operating properly. Therefore the Certificate Ex.PW-14/B is defective as it fails to fulfill the condition (c) and (d). In respect of condition (e), the certificate is signed by Nodal Officer. The Nodal Officer, however, can be said to be holding responsible position, therefore this condition is satisfied. Further in this case, the Nodal Officer, who has produced the documents, has not been examined and therefore these two conditions could not be deposed to by the witness who was examined. Further as discussed in the testimony of the witness that the certificate was given by Nodal Officer Vikas Phulkar whereas witness in his statement u/s 161 Cr.PC stated that it was given by Nishant Seth. Apart from it, other infirmities also came in the cross- examination of this witness. Therefore the CDR and CAF are CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 62 of 74 -63- inadmissible in evidence and cannot be relied upon for any purpose.
84. The certificate in respect of mobile no. 9818125424 of accused Ravinder Singh was given by Tarun Khurana, which is proved as Ex.PW-2/A. It mentions that CDR in the form of hard copy is a true extract, is created in the usual and ordinary course of business and stored on the designated hard disk of the computer/system of company. The certificate also mentions that it is to the best of his knowledge. The access to the computer system and the data stored thereon is controlled by defined authorized roles exercised through unique user-id and the associated passwords and only concerned user knows the password. This certificate identifies all the information generally, but it does not say specifically about the consumer application form (CAF) and other details, which were also generated through computer and hence are electronic record. It shows that the same is for a period from 01.01.2012 to 17.01.2012. So, one can safely take it as a period, regarding call details record (CDR). However, customer application form, which shows the same to be of accused Ravinder Singh, could not be identified in the certificate. The certificate also does not mention the particulars of device used. With respect to condition (d), it meets with the requirement. It is signed by Nodal Officer, and therefore condition (e) is also satisfied. Therefore in this certificate the requirement of condition (c) that the certificate must furnish the particulars of the device CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 63 of 74 -64- involved in the production of that record, is not fulfilled and hence the certificate is defective to that extent. Therefore, the documents which are electronic record are not admissible in evidence.
85. The call details record of accused Ravinder Singh and accused Sunil Keshary show that there were conversation between them at the relevant time. However, since the CDRs which are electronic record could not be proved, therefore, the prosecution has failed to prove this evidence to this effect that they were conversing at the relevant time as per the call details record.
Intercepted Recorded Calls
86. Now we are left with the evidence of recorded intercepted conversation. As regards Certificate u/s 65-B of India Evidence Act with respect to intercepted conversation, it gives identity of the person as Dy. Superintendent of Police, holding responsible position in relation to the operation and management of the computer system used and identify computer system as a call recording server with special voice logging software supplied by M/s Kommlabas Dezign Pvt. Ltd. A-46, Sector-4, Noida, UP used for recording of intercepted telephonic communication. Further mentions that he was having lawful control over the use of this computer system, which was used regularly to record intercepted telephonic communications, during the period of interception CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 64 of 74 -65- and that during the said period, intercepted telephonic communications were recorded regularly in this computer system in the ordinary course of the said activities and that during the period in question the above said computer system was operating properly and there have been no operational problem so as to affect the intercepted electronic records and the accuracy of their contents at their end. That the computer hardware and software used in the above said computer system has in built security mechanisms for the integrity of recorded data. The certificate also identifies the 36 calls were intercepted and recorded on the above mentioned computer system 11.01.2012 to 17.01.2012 and these calls were reproduced on a Compact Disc and two sets of same were prepared and were signed by him for the purpose of identification and handed over to IO. It also finds that above is correct to the best of his knowledge and belief. Therefore the condition as laid down have been fulfilled by Certificate u/s 65-B of Indian Evidence Act and therefore the electronic record of intercepted recorded conversation is admissible in evidence. However, the court is required to examine its reliability and evidenciary value.
87. It is submitted by Ld. Defence Counsel that recorded conversation can be at the best used as a corroborative piece of evidence and since prosecution has failed to prove substantive evidence against the accused, the corroborative evidence by itself does not prove anything. The recorded conversation and CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 65 of 74 -66- its transcription which are proved by the prosecution discussed the incriminating conversation amongst them regarding money to be given in connection with extension of visa of Cambodian national. The specimen voices of accused were recorded and the expert has given finding that voice is probable voice of accused persons as per the auditory and spectography examination. Ld. Counsel cited recent judgment of our own Hon'ble High Court in case titled as Anil Kumar Tito @ Anil Kumar Sharma @ Titto v. State of NCT of Delhi Crl. A. No. 66/2013, decided on 29th May, 2015. Ld. Defence Counsel also cited case titled as Ram Singh v. Col. Ram Singh, 1985 Supp. SCC 611 and Mahabir Prasad Verma v. Dr. Surinder Kaur, (1982) 2 SCC 258. The other judgments are also considered by Hon'ble High Court of Delhi in judgment of Anil Kumar Tito (supra). It is worthwhile to quote observation in Anil Kumar Tito (supra) which gives law on the subject in concise form.
17. The pre-requisite of proving the tape recorded conversation have been spelt out by the Hon'ble Supreme Court in Nilesh Dinkar Paradkar (supra), wherein it was held as under:-
31. In our opinion, the evidence of voice identification is at best suspect, if not, wholly unreliable. Accurate voice identification is much more difficult than visual identification. It is prone to such extensive and sophisticated tampering, doctoring and editing that the reality can be completely replaced by fiction. Therefore, the Courts have to be extremely cautious in basing a conviction purely on the evidence of voice CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 66 of 74 -67- identification. This Court, in a number of judgments emphasised the importance of the precautions, which are necessary to be taken in placing any reliance on the evidence of voice identification.
32. In the case of Ziyauddin Burhanuddin, Bukhari v. Brijmohan Ramdass Mehra and Ors., (1976) 2 SCC 17, this Court made following observation:
"We think that the High Court was quite right in holding that the tape-records of speeches were "documents", as defined by Section 3 of the Evidence Act, which stood on no different footing than photographs, and that they were admissible in evidence on satisfying the following conditions:
(a) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who know it"
(b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, had to be there so as to rule out possibilities of tampering with the record.
(c) The subject-matter recorded had to be shown to be relevant according to rules of relevancy found in the Evidence Act."
33. In the case of Ram Singh and Ors. v. Col. Ram Singh, 1985 (supp) SCC 611, again this Court stated same of the conditions necessary for admissibility of tape recorded statements, as follows:
"(1) The voice of the speaker must be duly identified by the maker of the record or by others who recognize his voice In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strict proof CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 67 of 74 -68- to determine whether or not it was really the voice of the speaker.
(2) The accuracy of the tape-recorded statement has to be proved by the maker of the record by satisfactory evidence - direct or circumstantial. (3) Every possibility of tampering with or erasure of a part of a tape-recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible. (4) The statement must be relevant according to the rules of Evidence Act.
(5) The recorded cassette must be carefully sealed and kept in a safe or official custody. (6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbance"
39. This apart, in the case of Mahabir Prasad Verma v. Dr. Surinder Kaur, (1982) 2 SCC 258, this Court has laid down that tape recorded evidence can only be used as corroboration evidence in paragraph 22, it is observed as follows:
"22......... Tape-recorded conversation can only be relied upon as corroborative evidence of conversation deposed by any of the parties to the conversation and in the absence of evidence of any such conversation, the tape-recorded conversation is indeed no proper evidence and cannot be relied upon. In the instant case, there was no evidence of any such conversation between the tenant and the husband of the landlady; and in the absence of any such conversation, the tape-recorded conversation could be no proper evidence. "
88. Therefore, as per law laid down, the tape recorded conversation is at the bast can be used as corroborative piece CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 68 of 74 -69- of evidence. Our own Hon'ble High Court in Division Bench Judgment in case titled as State v. Ravi @ Munna, 2000 Crl. L. J. 1125 reiterated that the tape recorded conversation can only be used as corroborative evidence of such conversation deposed to by any of parties to conversation. It is also case of the prosecution that the intercepted recorded conversation taken subsequently after the raid was conducted which itself shows that the prosecution was relying on this evidence not as substantive evidence but as a corroborative piece of evidence. In this case, voice of accused P. K. Singh, has not been identified by two witnesses produced by prosecution. The specimen voice of accused Ravinder Singh and Sunil Keshary has only been identified by expert by way of expert evidence. In the cited judgment, similarly voice of accused was identified by the result of FSL. The contention of Ld. Counsel in the said case was that merely on the basis of report of FSL the appellant could not be convicted. Hon'ble High Court of Delhi finding other discrepancies did not rely on tape recorded conversation despite positive FSL report. In the present case infirmities are firstly that prosecution has failed to link the mobile number with the accused. Secondly failed to prove specimen voice was recorded in the CD was that of accused persons as they failed to prove CD. Although other witnesses deposed that specimen voices are recorded in their presence. Once trap is not fully established by the prosecution, the accused persons cannot be convicted merely on the basis of CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 69 of 74 -70- corroborative piece of evidence i.e. intercepted conversation.
89. Ld. Counsel submitted that orders Ex.PW-13/E, F and G in respect of interception of mobile phones were not proved as no official from home ministry has been examined. The interception orders of call has been proved by PW-13 Inspector Kailash Sahu, TLO but he has neither prepared it nor he is conversant with handwriting of maker. Therefore, the same could not be proved.
90. Now coming to defence of accused that the recovered money belongs to him. Accused P. K. Singh has examined his father Sh. Ramji Lal in his defence as DW-1. He testified that he is a practicing lawyer working at District Court Ghaziabad, UP and accused Pradeep Kumar Singh is his son and he resides with him at above mentioned address. In the year 2010, All India Institute of Medical Science (AIIMS) detected that he is suffering from prostate cancer and since then he is under the treatment of doctors. He brought the original OPD card of AIIMS dated 09.06.2010 and consultation record and proved the same collectively as Ex.DW-1/A (Colly) (2 pages). Further, stated that being a patient of cancer, he has to take medicines which are very costly. He also brought the latest medical bills dated 16.06.2014 and 22.01.2015, which were traced by him in his home and proved same are as Ex.DW-1/B (Colly) (2 pages). He stated that his son Pradeep Kumar Singh used to bring medicines for him from medical store situated CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 70 of 74 -71- near AIIMS. On 17.1.2012, the day his son Pradeep Kumar Singh was implicated in the present case by CBI, he had to take medicine and as such he had given his son a sum of Rs. 34000.00 approx. so that he may buy the medicine after attending his office. However, in the night of 17.1.2012, he came to know that his son Pradeep Kumar Singh had been implicated in this case. He visited the office of CBI in the night of 17.1.2012 wherein his son informed him that he had not done anything wrong and that he was carrying his money brought by him from home to purchase the medicine but CBI officials wrongly implicated him in the present case.
91. This defence witness was cross-examined by Ld. Public Prosecutor for CBI. In his cross-examination, the witness stated that he has not brought residence proof like ration card, voter card which show that he is residing at the said address. However, he has brought his advocate identity card in which above stated address is mentioned. He stated that there is no documentary proof which show that he had handed over Rs. 34000.00 to accused Pradeep Kumar Singh on 17.1.2012 and voluntarily stated that he is practicing lawyer and always carry cash of about Rs.1 lakh which he needs for his treatment and urgent requirement on account of health issues. He admitted that that he has no medicine purchase bill in respect of year 2012 and voluntarily stated that his treatment is going on since 2010 and denied the suggestions that he deposing falsely regarding giving of money of Rs.34000/- on 17.1.2012 CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 71 of 74 -72- to accused Pradeep Kumar Singh.
92. The invoices regarding purchase of medicines are dated 16.6.2014 and 22.01.2015. One invoice is of Rs.90,000/- and other is of Rs.22,500/-. However, no invoice of purchase of medicine is shown for the year 2012 or prior to that. The witness is lawyer by profession. He is fully aware that his son was facing trial for receiving bribe. It is not believable that he would not keep the invoices of medicines prior to 2012, the relevant time, or the invoices immediately after the trap. Therefore this document does not inspire confidence to the effect that this amount was, in fact, given by him to his son accused P. K. Singh for purchase of medicines. The intercepted conversation, although, a corroborative piece of evidence, find clear incriminating material regarding Rs. 15,000/- to be paid with respect to extension of visa of Cambodian national. Therefore, Rs.15,000/- recovered from the possession of accused P. K. Singh is tainted money and hence he is not entitled to the same. Further, no one had claimed remaining amount of Rs.17,000/- which was allegedly recovered from the register from the office of accused P. K. Singh, therefore, same also stands forfeited to State.
CONCLUSION
93. Therefore, as per discussion above, the prosecution has failed to prove that accused P. K. Singh was found in possession of Rs.15,000/- which was given by accused Ravinder Singh for CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 72 of 74 -73- the purpose of visa extension of Cambodian National. Although, accused P. K. Singh has admitted in his statement recorded u/s 313 Cr.PC that money which includes Rs.15,000/- is his own money and also his father had deposed to that he had given the same. Yet the prosecution has failed to prove beyond reasonable doubt that it was recovered as a consequence of trap which may be money meant for extension of visa of National Cambodian. The prosecution has also failed to prove that accused was in any manner empowered or has influenced decision regarding extension of visa and rather it has come on record that visa extension application was rejected. The prosecution has also failed to prove that call details record pertains to accused Ravinder Singh and accused Sunil Keshary. However, the prosecution has succeeded to prove that intercepted conversation was recorded and its transcription was prepared which discloses regarding money being paid for extension of visa. However, it is only corroborative piece of evidence insufficient to convict accused P. K. Singh. Accordingly, accused P. K. Singh is given benefit of doubt and acquitted of the charges.
94. As regards other accused persons namely Ravinder Singh and Sunil Keshary, the prosecution has failed to connect them with the alleged tainted amount. Accordingly, they are also acquitted of the charges.
95. Accordingly, in the totality of the facts and circumstances, I CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 73 of 74 -74- am of the opinion that prosecution has failed to prove their case beyond reasonable doubt against accused P. K. Singh and he is accordingly given benefit of doubt and acquitted of all the charges. Other accused persons namely Ravinder Singh and Sunil Keshary are also acquitted of all the charges. Bail bonds of all accused persons stand cancelled, sureties discharged. Original documents, if any, be returned to concern person/department against proper acknowledgment. The bail bonds under S. 437 A Cr.PC are already taken and are on record.
96. File be consigned to record room.
Announced in the open court today i.e. on 12.02.2016 (GURDEEP SINGH) SPECIAL JUDGE (PC ACT)/CBI-05 NEW DELHI/12.02.2016 CC No.: 88/12, RC No.:1(A)/2012/DLI/CBI CBI v Pradeep Kumar Singh etc Page No. 74 of 74