Delhi District Court
State vs . 1) Nasirul Sheikh on 25 November, 2016
IN THE COURT OF SH. REETESH SINGH, ASJ-02/FTC
NEW DELHI DISTRICT PATIALA HOUSE COURTS, DELHI
Sessions Case No. 04 of 2015
Registration No. 8978 of 2016
State vs. 1) Nasirul Sheikh
Son of Babloo Sheikh
Resident of VPO Krishanpur
PS Bostun Nagar, District Malda,
West Bengal.
2) Rasmuddin
Son of Isreal
R/o Village Haibatka, The Pahadi,
PS Gopal Garg, District Bharatpur,
Rajasthan.
FIR No. 43 of 2014
PS: Special Cell
U/s: 489B/489C/120B IPC
Date of institution of the case : 02.02.2015
Date when the case reserved for judgment : 25.11.2016
Date of announcement of judgment : 25.11.2016
JUDGMENT
1. Nasirul Sheikh and Rasmuddin are facing trial in this Court for the offences punishable under sections 120B and sections 489B and 489C both read with Section 120B of the Indian Penal Code (IPC).
2. The case set up by the prosecution as explained in the Police Report under Section 173 (2) of the Code of Criminal Procedure (Cr.P.C.) is that in the year 2014, input was received in the office the Special Cell that Fake Indian Currency Notes (FICN) printed in Pakistan have been circulated in to India through the Bangladesh border and distributed in different parts of the country. It was also revealed that one Rezaul, resident of Malda in West Bengal was heading its syndicate. On receipt of the said information, sources State vs. Nasirul Sheikh & Anr.
FIR No. 43 of 2014, PS: Special Cell 1/24 were deployed to develop information and technical surveillance was mounted. At about 4am on 26.09.2014 Insp. Dharmender Kumar received telephonic information from an informer that the syndicate headed by the said Rezaul of Malda West Bengal would be sending a consignment of FICN through an associate Nazirul for delivery to one Rasmuddin at ISBT Sarai Kale Khan Delhi at about 8am that day. The said information was recorded in the daily diary and discussed with senior officers. On their directions, a police team was constituted under the supervision of Insp. Sanjay Dutt consisting of SI Shahjahan, Insp. Rahul Kumar Singh, Insp. Dharmender Kumar, SI Dilip Kumar, HC Krishna Ram and other staff to act on the said information.
3. The Police Report further states that at about 5.30am the said team equipped with arms and ammunition and the IO kit left the office of Special Cell in an official gypsy, three private cars and three two wheelers after recording their departure in the DD register. At about 5:45 am the team reached IGL Petrol Pump, Ring Road near ISBT Sarai Kale Khan where the secret informer met them. On the directions of Insp. Sanjay Dutt, SI Shahjahan asked 5-6 public persons to join the raiding party but none agreed and went away without disclosing their identities. At about 7.30am technical surveillance revealed that Nasirul and Rasmuddin would meet at Nuh Bus stand, Haryana instead of ISBT Sarai Kale Khan. This information was again shared with senior officers and on their directions, the police team proceeded towards Nuh bus stand and reached there at about 10am. Again through technical surveillance the police team came to know that instead of meeting at Nuh bus stand, Rasmuddin and Nasirul would meet at the Old Toll Plaza, NH-8, Gurgaon, on the Delhi side. The team then reached the Old Toll Plaza. At about 12.50 pm, Rasmuddin was spotted and identified by the informer. At about 1.30 pm Nasirul came carrying one black coloured bag on his right shoulder and met Rasmuddin. Nasirul talked to Rasmuddin for about five minutes and took out a red coloured polythene from his shoulder bag and handed it over the same to State vs. Nasirul Sheikh & Anr.
FIR No. 43 of 2014, PS: Special Cell 2/24 Rasmuddin. Just then the police team surrounded both of them.
4. The Police Report further states that Insp. Sanjay Dutt disclosed their identities to both accused. The accused disclosed their names as Nasirul and Rasmuddin. The police team disclosed to them that they had information that they were carrying FICN. Upon checking the red coloured polythene bag it was found to be containing three wads each containing 100 notes of the denomination of Rs. 1000/- each. Upon checking the bag it was found containing some old clothes beneath which one black coloured polythene was concealed and was found containing four wads of 100 notes each of denomination of Rs. 500/- and two wads of 100 notes each of the denomination of Rs. 1000/-. All the notes appeared to be FICN. FICN amounting to Rs. 7,00,000/- in all were recovered from both the accused persons.
5. A list of the FICN containing the serial numbers of the recovered notes was prepared. SI Shahjahan took out five notes each from the three wads of Rs. 1,000/- as sample and kept these 15 notes in a zipped polythene marked as S-1 and kept the remaining 285 notes in three wads into the same red coloured polythene packed, prepared a cloth pullanda and sealed the same with the seal of SS, with the pullanda marked as EX-1. SI Shahjahan then took out five notes each from the remaining six wads recovered from the bag and kept these 30 notes in another zipped polythene and marked the same as S-2, kept the remaining 570 notes in six wads into the same black coloured polythene packed, prepared a cloth pullanda and sealed it with the seal of SS, with the pullanda marked as EX-2. SI Shahjahan then prepared the rukka and handed over the same to ASI Kishna Ram for registration of the FIR. Further investigation of this case was assigned to SI Sumit Kumar.
6. The police report further states that SI Sumit Kumar with SI Vinay Kumar reached Rajokari Toll Plaza and SI Shahjahan handed over the sealed State vs. Nasirul Sheikh & Anr.
FIR No. 43 of 2014, PS: Special Cell 3/24 parcels, FSL forms, seizure memos and custody of the accused persons to SI Sumit Kumar. SI Sumit Kumar interrogated the accused persons and arrested them. He recorded their disclosure statements and conducted their personal searches. During personal search, a mobile phone from each of the accused was recovered. One railway ticket was recovered from Nasirul Sheikh. The same were seized. The accused person with the case property were brought to the office of the Special Cell and the case property was deposited in the Malkhana. The seized FICN were sent to the Currency Notes Press Nashik for forensic examination which were found to be fake. The Call Detail Records (CDRs) of mobile phones of the accused persons were obtained. After completion of the investigation, SI Sumit Kumar filed the charge-sheet.
7. By order dated 10.03.2015, charges as above were framed against the accused persons to which they pleaded not guilty and claimed trial. In all the prosecution has examined 12 witnesses to bring home its charges against both the accused persons. Sh. Anuj Bhatia Nodal Officer from M/s Vodafone was examined as PW1, SI Shahjahan was examined as PW2, HC Ram Niwas was examined as PW3, SI Rakesh Malik was examined as PW4, Ct Jitender Kumar was examined as PW5, Sh. Pawan Singh Nodal Officer from M/s Idea Cellular Ltd. was examined as PW6, MHCM SI M. Baxla was examined as PW7, ASI Kishna Ram was examined as PW8, SI Vinay Kumar was examined as PW9, HC Susheel was examined as PW10, Insp. Dharmender Kumar was examined as PW11 and SI Sumit Kumar was examined as PW12
8. Statements of the accused persons under Section 313 of the Cr.P.C. were recorded. Nasirul Sheikh has claimed that all the recoveries claimed were planted upon him. He stated that he was illegally detained from Nizamuddin Railway Station by the officials of Special Cell of Delhi Police, forced to sign blank, typed and handwritten papers. He denied making any State vs. Nasirul Sheikh & Anr.
FIR No. 43 of 2014, PS: Special Cell 4/24 disclosure statement to the police. He stated that he had come to Delhi to seek employment. Accused Rasmuddin also claimed false implication. He stated that he was lifted from Nuh bus stand by the of the officials of the Special Cell. His mobile handset had fallen down at the time of his apprehension and its SIM Card was taken by the officers of the Special Cell. He had gone to Nuh to meet his sister. The mobile number 8145622132 did not belong to him and he claimed that he was made to sign several blank papers which were misused. He wanted to evidence in defence.
9. In defence evidence Rasmuddin examined as DW1 Mobin and Akbar as DW2. DW1 stated that on 26.09.2014 at about 8:30am, he was present at Nuh bus stand for purchasing fruits. At that time, some persons came in a vehicle and apprehend Rasmuddin and upon inquiry, it was revealed that they were from Delhi Police. DW2 stated that on 26.09.2014 at about 8:30am, he was present at Nuh bus stand and calling for passengers in his commercial vehicle at Nuh bus stand. He stated that some persons came out from a vehicle and ran towards a boy Rassul whom they took away with them. Rassul was shouting that these from CIA and were taking him away.
10. Arguments were addressed by Sh. Riaz Mohd., Ld. Counsel for the accused Rasmuddin and Ms. Anjali Rajput, Ld. Amicus Curaie for the accused Nasirul Sheikh and by Sh. Irfan Ahmed, Ld. Addl. PP on behalf of the State.
11. On behalf of the State it was submitted that the prosecution witnesses were consistent in their testimonies with respect to the case set up. There were no major contradictions in their versions. He further submitted merely because public witnesses are not associated to the apprehension of the accused persons and recoveries effected from them, the testimonies of the police witnesses cannot be discarded. The only aspect which the Court is to State vs. Nasirul Sheikh & Anr.
FIR No. 43 of 2014, PS: Special Cell 5/24 keep in mind is put the testimonies of the police witnesses to greater scrutiny. He thus submitted that there was sufficient evidence on the record warranting conviction of the accused persons.
12. Sh. Riaz Mohd., Ld. Counsel for the accused Rasmuddin submitted that as per contents of DD No.18 information regarding circulations of FICN had been received and that technical surveillance was being kept on the basis of CDRs. The accused persons were alleged apprehended on 26.09.2014. From the possession of Rasmuddin, it was claimed that mobile phone handset with number 8145622132 of M/s Vodafone was recovered. The CAF and CDRs of this number was produced by PW1 as per which it was subscribed in the name of one Suraj Singh of Ministry of Home Affairs. Suraj Singh was not examined as a witness to prove that he was not in possession of the said number. Even with respect to Nasirul Sheikh, it was claimed that he was found in possession of a mobile handset with number 8343943088 of M/s Idea Cellular. PW6 produced the CAF and CDRs of the said number as per which it was in the name of one Mustaq who again has not been examined as a witness during the course of trial.
13. Sh. Riaz Mohd., Ld. Defence Counsel further submitted that DD No. 18 recorded the information that delivery of the FICN was to be made at Sarai Kale Khan but no time of delivery was recorded. As per the prosecution witnesses, the information was first of exchange of FICN at Sarai Kale Khan and then at Nuh bus stand and lastly at Rajokri, NH-8. None of these informations regarding change of venue of delivery of FICN were recorded in any memo. He relied upon the statement of PW2 and PW8 and submitted that as per them, the information about change in venue of delivery of FICN was received upon monitoring of CDRs which was being informed by the senior police officials. However PW11 in his cross-examination has stated that the said information regarding change in venue was given by the secret informer who State vs. Nasirul Sheikh & Anr.
FIR No. 43 of 2014, PS: Special Cell 6/24 was with the police team as he was talking with the accused persons. He submitted that none of the other witnesses stated that the secret informer with the police team was in touch with the accused persons. He further argued that there were no public witnesses were associated by the police team at any point of investigation and merely asking passersby to join the investigation was not a sincere effort. Even the secret information was not recorded properly. He further stated that none of the DDs mentioned any details of the vehicles used by the police officials in the raid. The log books of the official vehicles which were used in the raid, were not brought forward. He further submitted that if it was the case of the prosecution that CDRs were under surveillance then surely their numbers were in the knowledge of the members of the police team and the numbers under surveillance would have intercepted conversations as well but no such thing was produced before this Court. He submitted that in the supplementary disclosure statement Ex.PW4/D1 of Rasmuddin, three mobile phone numbers are mentioned but the CDRs of these numbers were not brought forward. Sh. Riaz Mohd. in support of his submissions relied upon the following case law:-
(i) Mohd. Masoom vs. State of NCT of Delhi, Criminal Appeal No. 1404 of 2011 decided on 09.04.2015; and
(ii) Ram Prakash vs. State , Criminal Appeal No. 1363 of 2014 decided on 10.12.2014.
14. Ms. Anjali Rajput, Ld. Amicus Curaie for the accused Nasirul Sheikh made similar submissions to those made by Sh. Riaz Mohd. In addition, Ld. Counsel relied upon the statements of PW2, PW4, PW8, PW9 and PW11 in their cross-examination and also submitted a chart of the same for consideration of this Court. She relied upon the judgments of the Hon'ble High Court of Delhi in the case of Rohit Dhingra & Anr. vs. State, Criminal Appeal No. 926 of 2011 decided on 03.02.2012.
15. I have heard counsel for the parties and have perused the record of this case.
State vs. Nasirul Sheikh & Anr.
FIR No. 43 of 2014, PS: Special Cell 7/24
16. Before proceeding to deal with evidence led in this case and the submissions made by the Ld. Counsel for the parties, I deem it appropriate to refer the case law relied upon by Ld. Counsel for the accused persons. In the case of Ram Prakash vs. State (supra), the Hon'ble High Court of Delhi was pleased to hold that in every case it has to be examined whether serious efforts have been made by the police to associate public witnesses while apprehending persons accused and carrying out recoveries from them. It was held that where apprehension of accused persons takes place in a busy area with government officials and public persons available, the Court should be wary in accepting the explanation by the police officials that they tried to associate passersby to join the investigation and that they declined and left without disclosing their names and identities.
17. In the case of Mohd. Masoom vs. State of NCT of Delhi (supra), the Hon'ble High Court observed that even though it was not any rule of law that public witnesses should be joined in every eventuality or that no conviction can be based on the testimonies of police witnesses, sometimes joining of independent public witnesses is not a mere formality. By simply saying that public witnesses were not available without any evidence to that effect is not sufficient. The Investigating Officer is required to make genuine efforts to associate independent public witnesses if available as the same lends authenticity and credibility to the search and recovery effected. Each case has to be appreciated on its own facts and circumstances. Asking passersby to join the investigation is not a genuine effort. Where there are a number of shops available in the locality, efforts should have been made to join the shopkeepers. Where number of police officials and government officials are available near the place of apprehension, calling upon passersby to join the investigation and their refusal is a weak explanation as to why independent witnesses could not associated. It was further observed that where the registration number of the State vs. Nasirul Sheikh & Anr.
FIR No. 43 of 2014, PS: Special Cell 8/24 private vehicles used by the police in their raid do not find mention in any of the DD entries or documents prepared at the spot but the prosecution witnesses are able to reveal the minutest of details of the occurrence, it was unbelievable that they would not be aware of the registration number of the private vehicles used in the raid. It was further observed that the site plan must reflect the location of every member of the raiding team. The fact that the investigation was assigned to a police officer who reaches the place of apprehension before the rukka is sent is also a suspicious circumstance especially in the absence of any written orders of senior police officials regarding assignment of investigation. Absence of CDRs of members of raiding team would have lent credibility to the apprehension.
18. In the present case, the witnesses relevant to the apprehension of the accused persons and recoveries being effected from them are PW2 SI Shahjahan, PW4 SI Rakesh Malik, PW8 ASI Kishna Ram and PW11 Insp. Dharmender Kumar. They have deposed as per the version of the prosecution in their examination in chief. The same is therefore is not being referred to.
19. In cross-examination PW2 SI Shahjahan stated that by technical surveillance, he meant analysis of the call detail records (CDRs). He stated that they analyzed the CDRs of the mobile phones used by the persons who used to talk to Rezaul and that Insp. Dharmender was analyzing the CDRs. He came to know the name of accused Rasmuddin for the first time on the day when he came to spot for taking the delivery of fake currency. He was in the office in the intervening night of 25/26.09.2014. Insp.Dharmender Kumar and some other members had stayed the whole night in the office of the Special Cell and in the morning only the raiding party was constituted. No public person was available when they came out from the office of Special Cell. The IO had not sent any police official to the adjoining localities for calling the public witnesses. The information was received through landline phone in the office. No employee State vs. Nasirul Sheikh & Anr.
FIR No. 43 of 2014, PS: Special Cell 9/24 from the petrol pump near the spot was called at the spot. PW2 He voluntarily deposed that only passersby were asked to join the raiding party. Insp. Dharmender and Insp. Sanjay Dutt had informed them about the change in venue of the accused. As they were at some distance, he could not state when the call regarding change in the venue was received by Insp. Dharmender or Insp. Sanjay Dutt. PW2 deposed that they came to know about the change of venue from the analysis of the CDRs. The members of the raiding team were having the cell phones. He was not aware as to who informed the senior officers regarding the change in the venue of arrival of the accused persons.
20. PW2 SI Shahjahan in cross-examination further stated that they reached Nuh bus stand at 10-10.15 am. He could not state if the IO contacted the vendors at bus stands or other available persons to be witnesses of the apprehension as his location was at a distance. He i.e. PW2 with SI Rakesh Malik were at the same position but at a distance. He could not see SI Rakesh Malik. Insp. Dharmender and Insp. Sanjay Dutt were at a distance but could be seen. He could not state about the exact distance but stated that they were spread on the entire bus stand individually. He did not notice Insp. Dharmender or Insp. Sanjay Dutt speaking on their cell phones. Insp. Dharmender and Insp. Sanjay Dutt had informed him i.e. PW2 at 11:15 - 11.20 am about the change in venue of arrival of accused persons. He could not state if the members of the raiding team used their cell phones. They stayed at Nuh bus stand for 1-1.15 hours and reached at Toll Plaza NH-8 at about 12:45pm.
21. In cross-examination PW2 SI Shahjahan further deposed that Rasmuddin arrived on foot at the spot after about 5-6 minutes of their reaching the spot. Insp. Dharmender informed him that Rasmuddin was coming at the spot on foot. They did not apprehend Rasmuddin immediately but kept a vigil upon him. He could not state the exact distance between Rasmuddin and the location of Insp. Dharmender and Insp. Sanjay Dutt. Nasirul Sheikh came to State vs. Nasirul Sheikh & Anr.
FIR No. 43 of 2014, PS: Special Cell 10/24 the spot on foot after about 30-40 minutes from the side of Toll Plaza. They did not apprehend Nasirul Sheikh when he was moving towards Rasmuddin. They offered their search to the accused persons to which they refused. They did not apprehend the accused while they were having conversations. The accused persons were apprehended when they were standing towards the corner of the service board at Exit No. 19. The Toll Plaza was located at a distance from Exit No. 19. No public persons other than passersby were asked to join the raiding party. They only contacted the pedestrians and did not stop the cars and other vehicles.
22. In cross-examination PW2 SI Shahjahan further deposed that the writing work was done while sitting in the Ritz car. The recovered FICN were given numbers at the spot itself on the road but he could not remember if the police officials who witnessed the recovery, signed the parcels containing FICN. SI Rakesh Malik was present in the Ritz car while writing work was done. No written order regarding the assignment of investigation to SI Sumit Kumar was received at the spot and it was an oral information received on the phone of Insp. Sanjay Dutt. He i.e. PW2 prepared the rukka and send the same at about 4:30pm through HC Krishna Ram who came at the spot at about 9-9:15 pm after registration of the FIR. Between the period of sending rukka and receiving of the copy of FIR at the spot, the parcels were sealed, FSL form was filled and accused persons were interrogated. Statement of SI Rakesh Malik was recorded at the spot. The disclosure statement of the accused persons were not recorded in the presence of PW2. He thereafter immediately stated that the disclosure statement was recorded in his presence. He could remember if he signed the disclosure statements. They left the spot at about 9:47-10 pm. The case property was deposited in his presence. He had not seen what happened in the Malkhana. He was not present when the IO handed over the case property to the MHCM though he had taken the same in his presence. He could not remember as to what documents were prepared in the office of State vs. Nasirul Sheikh & Anr.
FIR No. 43 of 2014, PS: Special Cell 11/24 Special Cell. No member of the team was deployed at any of the platform of the railway station. Voluntarily, he submitted that they were standing at the exit gate of the railway station. He admitted that they did not spot Nasirul Sheikh coming out from exit gate of the railway station as there was a crowd. The raiding party was scattered near the exit gate in order to spot the accused. They were not checking the taxis and autos coming out from the parking of the railway station in order to spot the Nasirul Sheikh. He could not comment about the time of arrival of the train as they were standing outside the exit gate. The team members stayed at the exit gate till 7-7:15pm. Rest of the cross-examination of PW2 is in the form of suggestions which he denied.
23. PW4 SI Rakesh Malik in cross-examination has stated that Inspector Sanjay Dutt told him about influx of FICN from Bangladesh into India but before 26.09.2014 he did not have any information regarding the group involved. He could not remember the date when he came to know that Rezaul was also involved distribution of FICN in India. He could not remember when he came to know the name of Rezaul. He did not know whether the mobile number of Rezaul was put on technical surveillance. He stated that Insp. Sanjay Dutt and Insp. Dharmender were in different vehicles thus he could not say whether they asked any residents of nearby areas to join the police. He stated that he himself was sitting in the Maruti Ritz car and SI Shahjahan was sitting with him. SI Shahjahan had not asked any public person on their way to Sarai Kale Khan to join them in their proceedings. He could not state whether employees of the petrol pump were asked to join the police team. He stated that only passersby were asked to join the police team. He came to know that the accused person were not coming to Sarai Kale Khan at about 7.25 am. He had not seen Insp. Sanjay Dutt signing any document. He could not remember whether he saw him preparing any document.
24. PW4 in cross examination further stated that Nuh Bus stand was State vs. Nasirul Sheikh & Anr.
FIR No. 43 of 2014, PS: Special Cell 12/24 90-95 km away from Delhi. He denied the suggestion that they had no information as to at what time the accused would come. He stated that they had information that the accused would come at Nuh bus stand at about 11 am but no document in this regard was prepared. He had not seen the accused Rasmuddin at Nuh bus stand. He did not know whether the sister of Rasmuddin was bitten by a snake and for this reason he was going to meet her. He did not know whether mobile no 8145622132 was allotted to Surat Singh. He stated that Rasmuddin arrived at the Toll Plaza on foot at about 12.50 pm and Nasirul came at about 1.30 pm. Rasmuddin waited for Nasirul for 40 minutes. He saw Rasmuddin for the first time from a distance of about 50-100 meters. He could not state the distance between the bus stand and Toll Plaza. He admitted that information regarding accused persons are coming at Toll Plaza instead of Nuh Bus stand was not reduced into writing. Nasirul came to the spot on foot from the side of Toll Plaza on the road heading from Gurgaon to Delhi. He first saw Nasirul from a distance of 100-150 meters. He along with SI Shahjahan were standing closer to Rasmuddin than the other members. He stated that trees or sheds were not there at the place where Rasmuddin was standing. He was standing at a distance of about 50-100 meters from Rasmuddin and was visible to him. He stated that the police team was also visible to Rasmuddin from where they were standing. They surrounded both the accused persons. He stated as correct that Nasirul was carrying only one bag. They had no information that any other associate of the accused were to reach there.
25. PW4 in cross-examination further stated that all writing work was done at the spot while sitting in the Maruti Ritz car. He along with SI Shahjahan other team members had counted the recovered FICN. He could not say as to whose notes were counted by him. He stated that HC Kisna Ram took the rukka from the spot but he did not come back. The arrest memos were prepared by SI Sumit at the spot but he could not say what other documents were prepared by him. He stated that the seizure memos were prepared by SI State vs. Nasirul Sheikh & Anr.
FIR No. 43 of 2014, PS: Special Cell 13/24 Shahjahan but the list of serial numbers of the notes were prepared by other members of their team. All the team members left the spot together finally at about 8.30 pm.
26. PW4 in cross examination further stated that they reached Nuh bus stand at about 10 am and left at around 11.15 am. They reached Gurgaon Toll via crossing Sohna road, Rajiv Chowk, Gurgaon at 12.50 pm. He was not aware about the identity of Nasirul but as per the information received, some person was bringing consignment from West Bengal. They had not lifted any fingerprint from the polythene bag recovered from Nasirul. He was identified by the informer. The IO had personally searched Nasirul. He did not know what was found in the personal search of Nasirul. He stated that the disclosure statement dated 02.10.2014 of Nasirul was recorded by SI Sumit Kumar in his presence. He was am not aware whether any other disclosure statement of Nasirul was recorded or not. He stated that Nasirul in his disclosure statement had disclosed about his mobile number. He was not aware whether the mobile number disclosed by Nasirul was verified or not.
27. In cross-examination PW8 ASI Kishna Ram stated that by technical surveillance, he meant that certain mobile numbers were put under interception and the information gathered from the intercepted calls was analyzed. He was not aware as to which telephone numbers were put under interception and the Inspectors who were part of the raiding team had disclosed about the phone numbers being intercepted. He could not state the exact date when the interception started. When they proceeded for the raid, the Inspector had told him about the fact that Rasmuddin belonged to village Haibatka Pahari, Bharatpur, Rajasthan. He could not state the exact time period when the information was further developed by the higher police officials but stated that the information developed prior to constituting the raiding team. He could not state as to where the private cars were arranged from. Efforts were made to State vs. Nasirul Sheikh & Anr.
FIR No. 43 of 2014, PS: Special Cell 14/24 join public witnesses from near the petrol pump but not exactly from the petrol pump. It was known to the higher police officials as to where the raiding party was to reach. Ct. Danish, Ct. Sanjit, Ct. Jitender, HC Anil Rao and PW8 were in the vehicle. He could not state as to who exactly received the information about the place where the accused persons were to deliver the consignment and the information was received by the senior officials. He could not state the time when the said information was received.
28. In cross-examination PW8 ASI Kishna Ram further deposed that he took a position on the patri near the road Sarai Kale Khan bus stand. The other members of the raiding team were positioned at some distance. The position and activities of the raiding team members were visible from the place where he was standing. He could not state in which vehicle the secret informer was sitting. They left the spot at about 7.30am. They stopped their gypsy near the Nuh Bus Stand, Haryana. None of the members of the raiding team alighted from the gypsy. The other vehicle in which the members of the raiding team were traveling was not visible from the place their gypsy was stationed. They remained in gypsy for about an hour near Nuh bus stand. When they were waiting near the Nuh bus stand, Insp. Dharmender came and disclosed that instead of coming there the accused persons were going towards Rajokri via NH-8, Toll Plaza. He could not state if any record of changing the place of delivery of FICN was maintained. They started from Nuh at about 11-11:15 am. He could not state the span of time taken to reach Rajokri. He could not state the tentative distance between the two.
29. In cross-examination PW8 ASI Kishna Ram further stated that at about 12.50 pm, Insp. Sanjay Dutt with other inspectors informed that the accused persons had reached Rajaukri. Nasirul Sheikh reached the spot after 40 minutes of reaching of Rasmuddin and till that time Rasmuddin was waiting there. The site plan was prepared at the place where the accused persons were State vs. Nasirul Sheikh & Anr.
FIR No. 43 of 2014, PS: Special Cell 15/24 apprehended. The accused persons were visible to the members of the raiding party. Some of the members of the raiding team were standing at some distances and the others were sitting in the vehicles and he i.e. PW8 was sitting in the vehicle. Both the accused persons were apprehended simultaneously. He could not state who physically apprehended Rasmuddin. The accused persons were made to sit on the patri at the spot itself. The IO conducted the personal search of Rasmuddin followed by the search of Nasirul Sheikh. The writing work was firstly done in respect of Rasmuddin. He could not state if the writing work qua both the accused persons was done by the same IO or the time taken in the paper work. He did not sign the memos. He could not state if the pullandas containing the case property were duly signed by the witnesses. He did not know about the numbers of the pullandas prepared at the spot but stated that pullanda for each wad was prepared. He left the spot with rukka for registration of the FIR at about 4.30 pm and came back to the spot at about 8 pm by bike. He could not recollect if he stated in his statement that after registration of the FIR further investigation was entrusted to SI Sumit Kumar and that he handed over the rukka and copy of the FIR to SI Sumit Kumar at the spot. At the time of the writing work at the spot both the accused persons were in physical custody of the raiding team. He could not recollect the exact time when they finally returned to the office of Special Cell but it was the night time.
30. In cross-examination PW8 ASI Kishna Ram further deposed that one of the accused was made to sit in the gypsy and the other accused in another vehicle but he could not cannot which accused was in which vehicle. He could not state as to in which vehicle the other accused was made to sit. The IO recorded his statement in the office of Special Cell. The case property was not deposited in his presence. He made his statement in Hindi but could not state in which language the IO recorded / translated his statement. He could not state if the IO himself noted down the statements of all the witnesses. He State vs. Nasirul Sheikh & Anr.
FIR No. 43 of 2014, PS: Special Cell 16/24 did not know if IO had recorded the disclosure statements and supplementary disclosure statements of the accused persons. The seal used for sealing the case property was of the impression SS. Rest of the cross-examination of PW8 is in the form of suggestions which he denied.
31. PW11 Insp. Dharmender Kumar in cross-examination deposed that on 26.09.2014 he was in the office during the intervening night of 25/26.09.2014. He could not remember at what time he reached the office on 25.09.2014 and whether he had lodged any DD entry on attending the office on 25.09.2014. He admitted as correct that the personal search of both the accused persons was conducted in his presence and one mobile phone instrument was recovered from each person. The seizure memo Ex.PW9/J was prepared in his presence. He admitted that as per the seizure memo Ex.PW9/J, the mobile phone instrument was recovered from Rasmuddin was make Samsung, dual SIM bearing IMEI Numbers 3586620503297010 and 358663105103297018 and that as per the said seizure memo one SIM card bearing serial number H38991671443698479245 of M/s Vodafone bearing mobile number 8145622132 was found loaded in the said mobile phone instrument. He admitted Ex.PW1/A was the CAF of mobile number 8145622132 as per which the same was issued in the name of Suraj Singh, son of Suresh Singh and that as per the ID proof appended with the CAF details of Suraj Singh were of local address 93 BN. BSF, Radha Badi, Jalpaigudi, 735135 and working with Army Paramilitary and Department of Home Affairs. He had no personal knowledge about Suraj Singh. He was not involved in collecting the CAF of number 8145622132.
32. PW11 Insp. Dharmender Kumar in further cross-examination deposed that he received the information on 26.09.2014 on the office land line phone. He was using two mobile phones on the said date i.e., 9212150508 and 8750871525. The same were used by him throughout the proceedings. He State vs. Nasirul Sheikh & Anr.
FIR No. 43 of 2014, PS: Special Cell 17/24 could not recollect the exact name of the officer who was deployed for developing the information regarding the supply of FICNs by accused Razaul to some person of Bharatpur District, Rajasthan. He stated that collective efforts were made by the team working under the supervision of Insp. Sanjay Dutt. He himself i.e. PW11 analyzed the CDRs of the mobile phones used by the members of the syndicate to locate their movements and hide outs. He could not remember the date on which the name of Rasmuddin had surfaced. They reached Sarai Kale Khan, ISBT via Barapulla Flyover. He could not state whether SI Shahjahan had asked any shopkeeper or vendor to join the investigation at Sarai Kale Khan, ISBT. He could not state whether the mobile phone used by the accused persons were put on interception. In response to a specific question, PW11 answered that he could not state if Nasirul Sheikh had come to Delhi by Malda Farakha Train. He voluntarily submitted that a train ticket was recovered from his possession from Farakka to Delhi and in his cursory interrogation he had reveled that he had come to Delhi by train.
33. PW11 Insp. Dharmender Kumar in further cross-examination deposed that the informer met him near Sarai Kale Khan Bus stand when Insp. Sanjay Dutt and SI Shahjahan were with him. The change of meeting place of the accused persons was conveyed to them by the secret informer who was with them. The secret informer remained with them till the apprehension of the accused persons. There was no call from the office of Special Cell Lodhi Colony regarding any other case in between 7am and 7:30am. Some of the team members of the raiding party were directed to return to the office of Special Cell by Insp. Sanjay Dutt. No efforts were made to join public persons from the residential colonies situated on the way from Delhi to Nuh. He could not remember at that stage as to how many times he had used his mobile phone. Efforts were made by SI Shahjahan on the directions of Insp. Sanjay Dutt at Nuh bus stand to the public witness to join the raiding party. SI Shahjahan could tell whether the public witnesses were passersby or shopkeepers. He State vs. Nasirul Sheikh & Anr.
FIR No. 43 of 2014, PS: Special Cell 18/24 could not state as to how Nasirul Shiekh came to toll plaza NH8 Gurgaon either by auto or bus. Voluntarily he submitted that he was spotted on feet by the informer and was pointed out to them. He was spotted later as Rasmuddin was already present at the spot as identified by the informer.
34. In cross-examination PW11 Insp. Dharmender Kumar further deposed that Nasirul Sheikh was pointed out and identified to them by the informer when he was about 50-60 yards away from them. He could not state whether the residential area was about one or two kilometers away from the toll plaza. He could not remember as by which mean Rasmuddin came at the spot but he was identified to them by the informer when he was about 20 - 30 yards away from them. He admitted as correct that no bus ticket was recovered from the possession of Rasmuddin. The writing works at the spot was done by the IO while sitting in a private Maruti Ritz Car. He could not state the exact document which were prepared between the period of sending the rukka and receiving of the same at the spot but arrest memo and personal search memo were prepared and that he did not sign any memo prepared at the spot. Rest of the cross-examination of PW11 is in the form of suggestions which he denied.
35. After having considered the submissions addressed by the Ld. Counsel for the parties and perusing the evidence on record, the following circumstances come to light :-
(a) As per the case of the prosecution, they had used three private cars, three private two-wheelers and one official police vehicle i.e. Maruti Gypsy in the raid. DD No.19 dated 26.09.2014 records the registration number of the police gypsy as DL-1CJ-
3642 but it does not record the registration numbers of three private vehicle and three two-wheelers used. None of the police witnesses i.e. PW2, PW4, PW8 and PW11 who were the members of the police team have stated the registration number State vs. Nasirul Sheikh & Anr.
FIR No. 43 of 2014, PS: Special Cell 19/24 of any of the vehicles used in the raid including the official vehicle. Log books of the official vehicle used have not been produced by the prosecution.
(b) The secret information is stated to be received by Insp. Dharmender Kumar PW11 and was reduced into writing vide DD No.18 dated 25/26.09.2014 at 4am. As per the same the secret informer had disclosed that the kingpin of FICN syndicate Rezaul had sent a person Nasirul to Delhi to deliver a consignment of FICN to Rasmuddin at ISBT Sarai Kale Khan. No time of this delivery is mentioned and no mobile number of any of these persons is recorded in the DD entry.
(c) As per case of the prosecution and the rukka, initial information received was that the delivery of FICN would be effected at 7:30am at ISBT Sarai Kale Khan. The police team reached near ISBT Sarai Kale Khan at 5:45am and deployed themselves. At 7:30am through 'technical surveillance' it came to light that delivery of FICN would be effected at Nuh bus stand Haryana at 11am. The team proceeded to the Nuh where they reached at about 10:15am. At about 11:30am there again through 'technical surveillance' information was received that the delivery would take place at old Toll Plaza at NH-8, Gurgaon towards Delhi side where they reached at 12:45pm.
Regarding the manner in which the police team came to know about change of place of delivery of FICN, PW2 in cross- examination stated that it was through analysis of the CDRs. PW8 in cross examination stated that he could say who received information about the place where the accused were to deliver the FICN but it was received by senior officers. At Nuh bus stand State vs. Nasirul Sheikh & Anr.
FIR No. 43 of 2014, PS: Special Cell 20/24 Insp. Dharmender had informed him about it.
However PW11 Insp. Dharmender stated that it was the secret informer who was with him was giving information about change in place of delivery of FICN. PW11 explained stated that the secret informer was in telephonic contact with a person from whom he got information about change in place of delivery of FICN.
If it was the secret informer who was with PW11 and was in telephonic contact with some other person about the venue of delivery and its change, it is surprising that the rukka speaks of 'technical surveillance' while the other witnesses talk about analysis of CDRs. This casts a serious doubt as to how the police team got information about the change in venue of delivery of FICN.
(d) The rukka in this case has been registered by PW2 who handed over the same for registration of the case to PW8 ASI Kishna Ram. PW8 has stated that he left the spot with the rukka for registration of the FIR at 4:30pm and came back to the spot at 8pm and handed over the copy of the FIR and rukka to SI Sumit Kumar PW12 at the spot. However PW4 SI Rakesh Malik in his cross-examination has stated that HC Kishna Ram took the rukka from the spot but he did not come back at all.
(e) As per case of the prosecution, the police team had apprehended both the accused persons at about 1:30pm. As per DD No.8 dated 26.09.2014, SI Sumit Kumar left the office of Special Cell at about 2:30pm at the instructions of senior officers with SI Vinay Kumar for the place of apprehension of the accused.
Now, as per PW8, rukka was prepared and he left with it State vs. Nasirul Sheikh & Anr.
FIR No. 43 of 2014, PS: Special Cell 21/24 only at 4:30pm from the spot for registration of the FIR. PW12 to whom the investigation was assigned had already reached the spot even before preparation of the rukka. No written instruction or order of any senior officer by which further investigation was assigned to SI Sumit Kumar was produced by the prosecution.
(f) Regarding involvement of public witnesses in the apprehension of the accused persons, it is seen that the police team left the office of Special Cell at about 5:30am as per DD No.19 dated 26.09.2014 and they finally came back at 9:30pm on 26.09.2014 recorded vide DD No.16. The police team was therefore on the road from 5:30am to 9:30pm. During this period they had visited three places, i.e. ISBT Sarai Kale Khan, Nuh Bus Stand Haryana and then NH8 old toll plaza. In this entire period, they were unable to associate even one single person from public with their proceedings.
The police team reached at Old Toll Plaza, NH-8 at about 12:30pm and apprehended the accused persons at 1:30pm. They remained there till at least 8pm as per PW8. NH-8 is a very busy road and there is heavy movement of pedestrians and traffic. Attempts were made to associate only passersby. Their names and addresses were not even noted down.
36. As in the cases of Mohd. Masoom vs. State of NCT of Delhi and Ram Prakash vs. State (supra), there are only police witnesses in this case. Attempts have been made only to associate passersby with the investigation even though the police were on the road from 5.30 am to 9.30 pm. It is highly improbable that no shop keepers or permanent establishments were available at ISBT Sarai Kale Khan, Nuh Bus Stand of NH8 and it is unbelievable that at all places only passersby were available. SI Sumit Kumar to whom the State vs. Nasirul Sheikh & Anr.
FIR No. 43 of 2014, PS: Special Cell 22/24 investigation was handed over reached the spot even prior to the preparation of the rukka. The manner in which the police team came to know about the constant change in venue of delivery of FICN is not free from doubt. There are no details of the vehicles used in the raid and no log books have been produced. Factually, the present case is similar to the cases of Mohd. Masoom vs. State of NCT of Delhi and Ram Prakash vs. State (supra) and is not free from reasonable doubt.
CONCLUSION
37. The net result of the above discussion is that the prosecution has failed to prove its case beyond reasonable doubt and both the accused persons Nasirul Sheikh and Rasmuddin are acquitted of the charges framed against them.
Announced in the open Court (REETESH SINGH)
on 25th November, 2016 ASJ-02/FTC, PHC/NDD
25.11.2016
State vs. Nasirul Sheikh & Anr.
FIR No. 43 of 2014, PS: Special Cell 23/24
State vs. Nasirul Sheikh & Anr.
FIR No. 43 of 2014
PS : Special Cell
25.11.2016
Present: Sh. S.K. Kain, Ld. Sub. Addl. PP for the State.
Accused Nasirul Sheikh and Rasmuddin are produced from JC. Sh. Riaz Mohd, Ld. Counsel for the accused Rashmuddin. Ms. Anjali Rajput, Ld. Amicus Curaie for the accused Nasirul Sheikh.
Matter is fixed for clarification, if any / orders today. No clarifications are required.
Be awaited for orders.
(Reetesh Singh) ASJ-02/FTC, New Delhi District, Patiala House Courts, New Delhi 25.11.2016 At 4pm Present : As above.
Vide separate judgment, both the accused are acquitted of all the charges framed against them.
The bail bonds furnished by them under Section 437A of the Cr.P.C. shall remain in force for a period of six months from today.
File be consigned to the record room.
(Reetesh Singh) ASJ-02/FTC, New Delhi District, Patiala House Courts, New Delhi 25.11.2016 State vs. Nasirul Sheikh & Anr.
FIR No. 43 of 2014, PS: Special Cell 24/24