Delhi District Court
State Through Cbi vs . Harish Arora & Another on 10 July, 2013
IN THE COURT OF SH. LOKESH KUMAR SHARMA, CHIEF
METROPOLITAN MAGISTRATE, SOUTHEAST DISTRICT, NEW DELHI
State through CBI Vs. Harish Arora & Another
RC No. 2 (S)/90 and CC No. 19/2 and 47/6
P.S. CBI
Unique ID No. 02403R0000691993
Date of institution of case: 09.09.1993
Date of reserving the judgment: 05.07.2013
Date of pronouncement of judgment: 10.07.2013
J U D G M E N T
1. S. No. of the Case : 19/2 and 47/6 2. Date of Commission of Offence : In or around June, 1990 4. Name of the complainant : Source Information
5. Name,parentage & address of accused: 1) Harish Arora S/o Sh. Nand Lal Arora, R/o Flat No.211, Pocket A3, Sector7, Rohini, Delhi and permanent resident of Satya Bhawan, New Raja Park, Shanti Path, Jaipur, Rajasthan.
2) V.P. Mishra S/o Sh. Jai Ram Mishra, R/o F1367, Laxmi Bai Nagar, New Delhi.
6. Offence complained or proved : under section 25 (1) read with section 3 of Antiquities and Art Treasurer Act.
7. Plea of Accused : "Not guilty"
8. Final Order : Acquitted
9. Date of Final Order : 10.7.2013 RC No. 02/90 & CC No. 47/6/11 CBI Vs. Harish Arora etc. 1/29 BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. As per case of prosecution, in or around the month of June, 1990, both the accused persons had entered into a criminal conspiracy to export certain antique articles in contravention of Section 3 Antiquities and Art Treasures Act 1972 and on 25.6.1990 while they were making an attempt to export these antique articles, i.e. (1) Red Sand Stone Pillar Capital depicting etlantes figure on one face and floral pattern on the other with socket and deep groove on either side, measuring 43 cm.x 21 cms. (2) Red Sand Stone Pillar Capital with atlantes figure on one face and floral pattern on the other with deep groove and socket,measuring 45 cm.x 25 cms. (3) Seated four armed Saraswati 46cms x 31cms in Red Sand Stone holding Veena on two hands and a book and aksamala in the fourth, (4) Sculpture showing a female diety carrying a child on her waiste (leg portion broken) two armed and an attendant figure with elaborate head dress, measuring 60 cms.x 30 cms. (5) Fragmentary portion of a larger Vishnu figure showing Chakrapurusha with one hand of Vishnu placed on his head measuring 44 cms. X 12.5 cms. and (6) Fragment of a large sculpture showing standing two armed lady figures probably an attendant measuring 70 cms. x 27 cms. The Customs Authorities upon their physical examination got suspicious about them and thereafter the concerned official from Archaeological Survey of India (hereinafter referred to as ASI) was called to examine those articles who had declared them to be antiquities and thus same were confiscated and accused Harish Arora was booked for offences U/s 25 (1) R/w Sec. 3 of Antiquities and Art Treasures Act.
RC No. 02/90 & CC No. 47/6/11 CBI Vs. Harish Arora etc. 2/29
2. After conclusion of investigation charge sheet in this case was filed on 09.9.1993. The cognizance against accused Harish Arora was taken by Ld. Predecessor of this court and later on vide order dated 19.01.1995 passed by Sh. V.K. Jain, the then learned MM (as his lordship then was) cognizance was also taken against accused V.P. Mishra and accordingly they were summoned to face trial. Accused persons had also duly appeared to contest the matter on its merits and were supplied with the copies of charge sheet and other documents in compliance of Section 207 Cr.P.C.
3. On 21.3.1995 charge for offence U/s 120B IPC R/w Sec. 25(1) R/w Sec. 3 of Antiquities and Art Treasurers Act was framed against the accused persons to which they had pleaded not guilty and had claimed trial.
4. In order to prove its case against the accused persons, prosecution had examined 13 witnesses in all.
5. PW 1 was one Shri K. K. Kadam who was working as Inspector in Indian Airlines Warehouse at IGI Airport and as per this witness on 07.8.1990 he had handed over 15 photographs, Ex. PW 1/1 to 1/15 pertaining to the aforesaid six antique articles to Inspector S. K. Sharma who was the Investigating Officer in the present case. This witness was not cross examined by the defence despite availing opportunity in this regard.
6. PW 2 was Customs Inspector Sunder Lal who had stated that in the month of June, 1990 he was posted in Indian Airlines Cargo Export Warehouse, Palam as Inspector and was entrusted with the duty to examine the goods which were to be exported. Whenever the goods were brought for their export, the documents were RC No. 02/90 & CC No. 47/6/11 CBI Vs. Harish Arora etc. 3/29 firstly sent to Central Registration Unit from where the documents/papers were sent to Superintendent Warehouse for their processing and the entries were made in a register and thereafter same were sent to the Superintendent Incharge of the Warehouse who used to assign the same to one of the customs inspector for their examination. In the present case, the goods were assigned to PW 2 by the then Superintendent Incharge Sh. M. L. Rishi, after which PW 2 had received 4 copies of shipping bill bearing No. 026555 dated 25.6.1990 which were placed on record as Ex. PW 2/A and the invoice in duplicate has been placed on record as Ex. PW 2/B. Duplicate copy of GR Form was exhibited as Ex. PW 2/C. All the related documents were stated to have been brought before him by accused Harish Arora, who was also correctly identified by him in the court. The boxes/packets were opened by him to examine the goods wherein it was found that same were carrying some idols alongwith the base and they appeared to be old antiques in nature and thereafter PW 2 had written NOC after which accused Harish Arora hold told him to show the same to the superintendent. The word 'NOC' written by PW2 had appeared at point A on Ex. PW 2/A. The endorsement of the superintendent Shri M.L. Rishi was also obtained on Ex. PW 2/A wherein he had written 'Seen, let ASI see before export." The said endorsement was initialed by superintendent at point 'B' on Ex. PW 2/A. Handwriting appearing at point 'C' on the said document was stated to be that of accused Harish Arora. Thereafter the shipping bill was taken by the accused Harish Arora for obtaining opinion from 'ASI' on which one Shri Dharamvir Sharma, Dy. Superintendent, ASI had given his endorsement at point 'D' on the said document and opinion was also obtained from the Headquarter at the last. After obtaining the RC No. 02/90 & CC No. 47/6/11 CBI Vs. Harish Arora etc. 4/29 opinion, Harish Arora had submitted all the documents with PW 2 and on the basis of the same, all the goods were sealed by the seal of custom Warehouse and were delivered to the CBI in a wooden box. This witness had also identified all those articles as Ex. P1 to Ex. P6.
During his cross examination by Ld. Defence counsel, it was deposed by this witness that he had not made any inquiry after seizing the goods as he had been transferred. About 810 shipments were used to be verified by one inspector in one day. The words "Physically verified/examination Report" were used to be written sometimes by the custom inspector and sometimes by the clearing agent and mostly the examination report was written by the clearing agent at the instance of the custom inspector when the workload used to be too much in the warehouse. This witness had expressed his ignorance about any person with the name of Yogesh Sharma @ Billu and had denied the suggestion that he had deliberately not disclosed the complete facts to the IO and had concealed the information to save the real culprits. It was also admitted by him that report appearing at point 'C' of Ex. PW 2/A was already prepared and written by Harish Arora. However same was stated to have been written without his directions and before examination of the consignment by the Custom House Agent (CHA). Witness could not remember as to how many shipping bills were presented by Harish Arora for clearance. However he had admitted it to be correct that no adverse report of any kind in the present case was ever received by him against Harish Arora.
7. PW 3 was Shri M. L. Rishi, retired Superintendent of Customs who had deposed that in the month of June, 1990 he was posted as Superintendent Customs in RC No. 02/90 & CC No. 47/6/11 CBI Vs. Harish Arora etc. 5/29 the Export Branch of Indian Airlines Cargo at Palam Airport and the invoice was put up before him for its clearance and before the same could have been done, it was the duty of the inspector to physically verify the goods/shipment as per the invoice and thereafter to submit his examination report. On 25.6.90 he had directed Inspector Sunder Lal to examine the shipping bill related to the export of the articles forming subject matter of the present case and thereafter to report back to him. After submission of the report at point C, he had asked the inspector to produce the goods before him and after the goods were seen by him and the same were found to be antiques then he had directed the same to be examined by the officials of ASI before their export. He had also identified his endorsement appearing at point 'D' on Ex. PW 2/A and had also identified the goods in the court which were to be exported. He had further identified the endorsement at point 'D' on Ex. PW 2/A related to opinion rendered to him by ASI officials.
During his cross examination by the learned defence counsel, it was admitted by him that no such endorsement at point 'C' on shipping bill Ex. PW 2/A was in existence at the time when he had made his own endorsement and directed the Inspector for conducting the inspection of the goods. He was stated to be the only Superintendent posted at the said Section of Indian Airlines Cargo, Palam. He was also stated to have issued summons to accused persons belonging to SP handicrafts and the person who had represented the said firm. However, he had not summoned any other person. He had also recorded the statement of both the accused persons. However, he was stated to be not knowing any of the persons in the name of Yogesh Sharma @ Billoo, Bali Ram Sharma and Surneder Kankaria. It was also admitted by RC No. 02/90 & CC No. 47/6/11 CBI Vs. Harish Arora etc. 6/29 him that PW 2 Sunder Lal was also transferred alongwith him and that he used to sit in a cabin whereas Sunder Lal used to sit outside the cabin but in the same room. CBI was stated to have recorded his statement only once but he was again called for some clarifications about the endorsements on the shipping bill. He himself had not handed over any document to the IO of the case. He had never given any option to the accused persons regarding getting their statement recorded U/s 108 of Customs Act by some other superintendent.
8. PW 4 was Smt. Harcharan Kaur W/o Shri Jaspal Singh R/o Pkt. A3, H. No. 213, Sector7, Rohini, Delhi who had stated that accused Harish Arora was known to her being her neighbour, about 8 years prior to the date of her examination. Specimen handwriting of accused Harish Arora was taken in her presence on 11 sheets which were exhibited on record as Ex. PW 4/A1 to Ex. PW 4/A11, all bearing her signatures at point A of each page. This witness was also not cross examined by accused despite opportunity having been given to him in this regard.
9. PW 5 was Shri Dharamvir Sharma, Superintendent, Archaeologist from ASI who had deposed that on 26.6.1990 he was posted as Dy. Superintendent, Archaeologist at IGI Airport. He had seen Ex. PW 2/A and had rendered his opinion on the same at point 'D' bearing his signatures at point E. Four stone objects and two stone pillars were examined by him on 27.6.1990 and in his opinion, the same were antiquities and thereafter the same were also shown to his Director Sh. L.K. Srinivasan and his opinion was also obtained with regard to the said articles which was stated to be at point 'F' and bearing his signatures at point 'E' whose signatures he could identify as he had seen him signing and writing. The antiquity report was RC No. 02/90 & CC No. 47/6/11 CBI Vs. Harish Arora etc. 7/29 placed on record as Ex. PW 5/A bearing signatures of Shri L.K. Srinivasan at point A and its communication is Ex. PW 5/B. Another report of Shri L.K. Srinivasan dated 12.7.1991 regarding registration of antiquities has also been placed on record as Ex. PW 5/C. Two memos dated 06.11.90 were also placed on record as Ex. PW 5/D and Ex. PW 5/E respectively.
During his cross examination by the learned defence counsel, it was deposed by him that whenever any objects were referred to him for examination and were visually appearing to be antiquities, then he used to refer such objects to DG, ASI. PW 5 was stated to have obtained the degrees of M.A. in history, M.Phil. In Archaeology and post graduate diploma in Archeology. It was further deposed by him that when the officials of ASI had gone for examination of the articles same were already lying unpacked and were produced before him by the Custom department and without opening the same, witness could not tell about their contents. He could not remember the name of the Custom official who had produced the said articles before him for their examination. At instance of this witness, the custom department had sealed the antiques with its own seal after taking opinion of PW 5. The said seal was again reopened in presence of PW 5 and in presence of one other Custom official whose name he could not remember. IO was also stated to be present at that time and thereafter the articles were resealed in presence of all those witnesses who were present at the time of its desealing.
10. PW 6 was R.K Jain, Deputy Government Examiner of questioned documents from FSL Shimla who had stated that vide letter dated 04.10.1991 copy of which was exhibited as Ex. PW 6/A and another letter dated 25.10.1991 which was exhibited as RC No. 02/90 & CC No. 47/6/11 CBI Vs. Harish Arora etc. 8/29 Ex. PW 6/B. Documents mark Q1 to Q4, Q16 to Q21 and Q51 on Ex. PW2/A, Q5 to Q7, Q22 to Q24 and Q52 on Ex. PW6/C, Q8, Q9, Q25 to Q27 and Q53 on Ex. PW6/D, Q10 to Q12, Q28 to Q30 and Q54 on Ex. PW 6/E, Q31 to Q35, Q13 on Ex. PW 2/B, Q36 to Q41, Q40 on second sheet of Ex. PW 2/B, Q42 to Q50 and Q15 on Ex.PW 2/C were received as disputed documents. The specimen writing and signatures of Harish Arora marked S6 to S9 on Ex. PW 6/F1 to F4 and S50 to S60 on Ex. PW 4/A1 to A10 were also received for comparison. The typed impressions marked S16 to S47 and S46A on Ex. PW 6/G1 to G23 were also received for comparison. The seal impression marked S48 to S84 on Ex. PW6/H1 to H3 were also received and upon comparison of those documents, he had given his opinion Ex. PW 6/J signed by him at point A and was also signed by Shri Santosh Singh at point B who was then working as Govt. Examiner after his own independent examination of those documents and he had also arrived at same conclusion as was drawn by PW 6. The said report was forwarded to CBI vide letter dated 12.11.1991 Ex. PW 6/K and the detailed reasons of his report were stated to be Ex. PW 6/L. 35 photographs were also taken by the government photographer under his supervision which were exhibited as Ex. PW 6/M1 to M35.
During his cross examination by the learned defence counsel, it was deposed by him that science of handwriting identification was a perfect science like other sciences provided that the data for comparison was suitable and sufficient. He had denied the suggestion that he had given the opinion against the accused on the directions of the CBI or that his opinion was a mere opinion not based on facts.
11. PW 7 was one Smt. Achala Moulik, Additional Chief Secretary, Karnataka, RC No. 02/90 & CC No. 47/6/11 CBI Vs. Harish Arora etc. 9/29 Vidhan Soudha, Bangalore who was stated to be posted as the Director General, Archaeological Survey of India in the year 1993 and in that capacity she had issued the sanction order against accused Harish Arora, Ex. PW 7/A and the said sanction was also communicated to CBI vide letter Ex. PW 7/B. However during her cross examination, she had denied the suggestion that she was not the authorized person to give any such sanction for prosecution of offence U/s 25 (1) R/w Sec. 3 Antiquities and Treasurer Act and that she had not gone through all the relevant record placed before her before according the sanction which was accorded without application of mind.
12. PW 8 V. P. Sharma S/o Sh. Hari Ram Sharma, R/o 20/375, Gandhi Nagar, Kathimandoo, Sonepat who had deposed that on 16.9.1991 while working as Superintendent of Customs at IAC Warehouse, Palam, New Delhi, he had handed over the documents as mentioned in Memo Ex. PW 8/A to IO R.K.Sharma. He had also identified his signatures on Ex. PW 5/D at point B which was prepared at the time of examination of objects by the team of ASI when the boxes were taken out from the store room, the seal were also stated to have been tallied and thereafter the boxes were opened.
During his cross examination by Ld. Defence counsel, he had deposed that on 06.11.1990 he was posted at Palam Airport. He could not remember his duty hours on the said particular day. His duties as Superintendent were to verify the import and export documents and miscellaneous work. On 06.11.1990 some CBI and ASI officials had visited him but he could not remember their names. The said team had inspected the objects and had carried nothing with them. This witness had also RC No. 02/90 & CC No. 47/6/11 CBI Vs. Harish Arora etc. 10/29 identified six articles as Ex. P1 to Ex.P6(objects), Ex.P7 and P8 (boxes).
Despite opportunity having been granted, this witness was not cross examined by the defence.
13. The most important witness in this case is PW 9 Shri Yogesh Sharma S/o Sh. Uma Dutt Sharma, R/o 1125, Laxmi Bai Nagar, New Delhi who had stated that in June, 1990 he was working as a clearing agent with M/s Rishi Enterprises, Nehru Place and he was also knowing one Shri Surender Kankaria who had met him in June, 1990 during his visit to Lal Qila Market to contact some handicrafts dealer. The said Surender Kankaria was stated to have told him that two packets were required to be exported to London and he had also asked him about the freight charges of the two boxes. He had also shown him those packages which were kept in the dikki of the car of one foreigner who was alongwith Mr. Surender Kankaria. He had further deposed that he had told them the handling and freight charges to be about Rs. 1200013000/ and had requested him to bring those two packets at his office at Nehru Place and thereafter he had reached his office on his scooter where the said Surender Kankaria had brought the said two packets in his Maruti Van had also given him Rs. 5500/, two slips bearing the name and address of the party and the bank and he had further assured him to realize the rest of the amount through bank. He had further deposed that he had met Sh. V.P. Misra who was present in the court and was correctly identified and as per this witness, since V.P. Misra had desired to deal with the said consignment hence he had handed over both those packets alongwith amount of Rs. 5500/ and the abovesaid slips for their onward transmission to V.P. Mishra. After 10 or 15 days, Sh. V.P. Misra was stated to have approached PW 9 alongwith RC No. 02/90 & CC No. 47/6/11 CBI Vs. Harish Arora etc. 11/29 accused Harish Arora and had told him that consignment which was given to them by PW 9 had been detained by customs authorities and had also asked him for some help if he was able to which was refused by the witness. Accused Harish Arora was also stated to be known to him being a clearing agent who was working with M/s King Travels and used to meet him at custom department at the Airport. This witness had also recognized the handwriting of Harish Arora at point C on Ex. PW 2/A as he had seen him writing at the customs house. However he had categorically stated that the boxes Ex. P7 and Ex. P8 were not the same one which were handed over to him by Surender Kankaria and which were further handed over by him to V.P. Mishra for sending the same to London. It was further deposed by him that at request of the accused persons, he had arranged their meeting with Surender Kankaria at his own residence.
During his cross examination by Ld. Defence counsel, this witness had deposed that for the last about 34 years from the date of his deposition i.e 23.10.2000, he was doing the liasoning work in the import and export business and he had been working as customs clearing agent during the period 1979 to 1993 and he used to work at Delhi only alongwith M/s. Rishi Enterprise. He was not having his individual licence for the said job and it was also admitted by him that licence was required for doing the business of custom clearing agent. Shri V.K. Sharma, proprietor of Rishi Enterprises was stated to be the brother in law (Jija) of PW 9 but it was PW 9 who used to visit the parties and the authorities at Airport. Shri Surender Kankaria was also stated to be known to him for the last about 1213 years. As Mr. Surinder Kankaria was not having IC Code number, hence he had contacted PW9 to RC No. 02/90 & CC No. 47/6/11 CBI Vs. Harish Arora etc. 12/29 send this consignment. Shri Surender Kankaria alongwith the foreigner had met him at Lal Qila (Red Fort) in the month of October but the year could not be remembered by the witness. Shri Surender Kankaria had never disclosed the name of the said foreigner to PW 9 and his meeting with Surender Kankaria was stated to have taken place at the office of Gulzari Lal and Sons at Red Fort. Surender Kankaria, as per this witness was dealing in the business of handicrafts and while PW9 was coming to the office of M/s Gulzari Lal & Sons, S.K. Kankaria was stated to have met him and had taken him at the parking stand. One Shri Shanker was stated to be the owner of Gulzari Lal & Sons having his office inside the red fort bearing shop No. 19B near the canteen. The said foreigner was stated to be aged around 35/40 years. The measurement of the wooden boxes which were handed over to him by Surender Kankaria were about 2' x 2 ½' which were also wrapped and tied up with iron strips and the witness had not seen the articles lying therein by opening those iron strips but were stated to be containing handicraft articles as told to him by said Surender Kankaria and he had also handed over the list of articles which were 45 handicrafts idols. The slip was also handed over to him by Surneder Kankaria which was stated to be containing the parties' name and address and the name and particulars of the bank. One box was stated to be weighing around 2030 kgs. and only amount of Rs. 5500/ was stated to have been received by PW 9 as freight charges whereas rest of the money was to be paid in the name of exporters through the bank and after receiving the money, Surender Kankaria was asked by PW 9 to deliver the boxes at his office which were accordingly delivered at his office after 30/40 minutes. No writing work was stated to have taken place at the time of receiving the said two RC No. 02/90 & CC No. 47/6/11 CBI Vs. Harish Arora etc. 13/29 boxes or in the parking.
In his further cross examination, it was deposed by him that delivery of boxes at his office was made by Mr. Surender Kankaria in his presence but he could not remember the total number of persons present in his office at that time. He was stated to be working on salary basis in the office run by his brother in law and was getting Rs. 1500/ per month and his firm also used to get commission from the freight charges. However he could not tell if any receipt was also issued by his office in respect of goods delivered to it. The aforesaid consignment of two packets was stated to have been received by him in the noon and was further delivered by him to V.P. Mishra in the evening for its onwards transmission on the very same day from his office at Nehru Place, when the said V.P. Misra had visited his office for looking for some work. He was stated to be not related to V.P. Misra in any manner except for the business transaction. He was also known to him through his company M/s Rishi Enterprises and accused Harish Arora was stated to be known to him since 45 years prior to the said transaction. It was admitted by him that both PW 9 as well as accused Harish Arora were involved in the same nature of job. However there was no such association of this witness with accused Harish Arora as was being exhibited through the circumstances of the present case. He was not aware if any foreigner was also involved in the matter, however he had met him only once through Surender Kankaria in relation to this case. Surender Kankaria used to meet this witness at Airport for almost for a decade. However he had no knowledge as to whether said Shri Surender Kankaria was having any IC number with him or not nor he was able to remember as to whether Surender Kankaria had ever taken his help for export of RC No. 02/90 & CC No. 47/6/11 CBI Vs. Harish Arora etc. 14/29 any other articles prior to the present incident nor he could say as to whether name of the said foreigner whom he met alongwith Surender Kankaria was J. A. Fletcher as he had never met with said foreigner after the present incident in question. Accused V.P Misra was stated to be residing in the same locality i.e. Laxmi Nagar where PW9 was residing. However their houses were situated at quite a distance from each other. It was also admitted by him that accused V.P. Misra had previously also done the shipment work in association with M/s Rishi Enterprises but since some differences had arisen between the two regarding financial matters between V.P. Mishra and M/s Rishi Enterprises, hence accused V.P. Misra had stopped working further with M/s Rishi Enterprises. However, despite having said that and admitting so, witness had denied the suggestion that it was because of those differences that he was deposing falsely against accused V.P. Misra. He had also denied the suggestion that he had seen those articles at the Red Fort itself and had volunteered that at the time when he had seen those boxes containing art objects, the same were of smaller in size as compared to those boxes which were produced before the court on the date of his deposition. It was further deposed by him that the two boxes delivered by S.Kankaria at his office were entirely different from those which were shown to him in the court and it was also admitted to be correct by him that he had seen those large boxes only for the first time on 23.10.2000 during his deposition in the court, when he had an occasion to see the same and it was also not denied by him that the weight of the boxes shown to him in the court might have been much more higher as compared to the said similar boxes. It was also admitted by him that S.Kankaria used to address him as "Billu" and had denied the suggestion as incorrect that he was deposing falsely to avoid his RC No. 02/90 & CC No. 47/6/11 CBI Vs. Harish Arora etc. 15/29 own implication in the present case. It was also denied by him that because of his previously relationship with V.P. Misra and to further the cause of M/s Rishi Enterprises, he in a cleandestine manner had lifted the relevant blank papers and made the documents as to V.P. Mishra. It was further denied by him as incorrect that he was also having the knowledge that the objects as recovered which were sought to be exported were in fact the antiquities and were to be smuggled out of the country and in order to save his own skin, he had involved accused V.P. Misra or that he himself had carried those boxes to IGI Airport.
14. PW 10 was one Surender Kankaria S/o Shi Shyam Sunder Kankaria R/o C34, Lal Kothi, Jaipur who was stated to be dealing in cloth painting, painting on clothes, papers etc. which he used to get prepared from artisan at Jaipur. In the year 1990, he used to visit Delhi frequently in connection with selling of those paintings, through his dealers in Delhi who were situated in Red Fort, Sunder Nagar, Jama Masjid etc. and after receiving his payment he used to go back to Jaipur and he had never met any foreigner during either of his visits to Delhi.
15. The witness had totally turned hostile and had not at all supported the case of the prosecution due to which reason he was also cross examined by Ld. APP for CBI wherein he had admitted that his statement was recorded by the CBI officials. However he had denied the contents of his statement recorded U/s 161 Cr.P.C. in its entirety which were put to him from point A to A to point M to M and it was deposed by him during his cross examination by ld defence counsel that his statement was recorded only once by the CBI on 06.9.90 and had denied the suggestion that he had not made any such statement to CBI on the aforesaid date. It was though admitted by RC No. 02/90 & CC No. 47/6/11 CBI Vs. Harish Arora etc. 16/29 him as correct that he had mentioned about certain recoveries made from his office at Jaipur, in his statement made to the CBI for which he was also tried in a court of law and later on was acquitted by the court. He had also stated it to be incorrect that he knew one George Flatcher. He had also stated that he was possessing one fiat car bearing registration No. RPE 7575 and one Maruti van No. DDA 9959 during the year 1990. However he could not remember as to whether he was having any PAN Card during the aforesaid period and he was further stated to have been acquitted by the court of Shri R.K. Gauba, the then Ld. CMM, in RC No. 2/90, CBI Vs. Surender Kankaria.
16. PW 11 PW was one Mahesh Goyal S/o Shri Badri Nath Goyal R/o 3646, Tel Mandi, Pahar Ganj, New Delhi who was the owner and proprietor of Raj Guest House situated at 3849, Tel Mandi, Pahar Ganj, New Delhi and as per this witness in the year 1990, CBI had visited his office to confirm about one Harish Arora and after checking the guest register for the relevant period, he had confirmed that Harish Arora had stayed in his guest house during the year 1990, starting from 16.7.90 till 04.8.90 and on two subsequent occasions thereafter. The photocopy of the relevant record was placed on record by the witness as Ex. PW 11/A to Ex.PW 11/D. During his cross examination by ld defence counsel it was categorically stated by this witness that column 'Full address of the place of which departed' was an unnecessary column in his register and was never filled by any of the visitors of his guest house.
17. PW 12 S. K. Sharma is the investigating officer of the present case who was posted as DSP, ACUVII, CBI on the date of his deposition. This witness had placed RC No. 02/90 & CC No. 47/6/11 CBI Vs. Harish Arora etc. 17/29 on record the photocopy of FIR as Ex. PW 12/A, letter written to the Director General, ASI as Ex. PW 12/B which was replied by the officials of ASI vide letter Ex. PW 5/B. The receipt showing taking possession of 15 colour photographs of antique articles from Shri K.K. Kadam, inspector has been placed on record as Ex. PW 12/C. Colour photographs were placed on record as Ex. PW 1/A1 to A15. Memo Ex. PW 5/D was also stated to have been prepared by this witness and the boxes after examination were resealed vide memo Ex. PW 5/E. He had also recorded statements of the witnesses truly and had identified the objects Ex. P1 to P6 alongwith wooden boxes Ex. P7 and P8. Specimen handwriting of accused V.P. Misra was also stated to have been obtained by him on 6 sheets, Ex. PW 12//D1 to 12/D6 and those of Yogesh Sharma on 6 sheets, Ex. PW12/E1 to 12/E6. Similarly, specimen typewriter impression taken by him was also placed on record as Ex. PW 6/G1 to 6/G24 and during the investigation true copy of visitors register of Raj Guest House was also obtained by him, already placed on record as Ex. PW 11/A to 11/D. During his cross examination by ld defence counsel, he had stated that he had no knowledge regarding any further investigation ordered or directed by the court in the year 1994 as he had already been transferred from the said branch in June, 1991. His statement had never been recorded in this case by any of the subsequent investigating officers. He could not also tell exact number of witnesses who were examined by him during investigation of this case nor he had prepared any list of witnesses examined by him during investigation. After his transfer from the said branch, investigation of this case was stated to have been handed over to Shri R.K. Saran, DSP who had also not recorded any statement of this witness at any point of RC No. 02/90 & CC No. 47/6/11 CBI Vs. Harish Arora etc. 18/29 time whatsoever. Investigation was stated to have been conducted by him on the basis of facts and available record. However he could not remember as to whether any help was taken by him from the statement of accused persons recorded by the custom authorities or not. It was also admitted by him that he was not aware as to whether he had ever recorded statement of the respective witnesses in this case prior to the customs officials. It was denied by him as incorrect that investigation of the present case was conducted by him in a half hearted manner or some undue allegiance also came into his way during investigation. First of all the statement of V.P. Misra belonging to M/s S.P. Handicrafts was recorded by him and he had denied the suggestion that he was intentionally avoiding the disclosure to tell as to what done further by him after recording of the statement of V.P. Misra in particular. The art objects constituting the case property in the present case which were kept in boxes were opened before him for the first time at the warehouse of Indian Airlines for the purpose of their examination. It was further admitted by him that all those boxes were also opened earlier by the custom officials as they had to take initial opinion about the nature of the objects and opinion rendered by the CBI/investigating agency in this case must have been stated to be the second opinion. PW 12 could not say exactly about the colours of the objects which were present at the time of inspection. As per this witness, name of G. Faltcher was mentioned on the shipping bill but he could not remember exactly as to which of the witness in the present case had mentioned his name. Though Surender Kankaria was stated to have been examined at Delhi but a search had also taken place at his Jaipur premises as well when he was not found available there. Witness further could not remember as to whether he had seen any of RC No. 02/90 & CC No. 47/6/11 CBI Vs. Harish Arora etc. 19/29 the shipping bills at the customs office upon his visit there. He himself was stated to have never interrogated any witness namely Yogesh Sharma in respect of the boxes in which six articles were allegedly lying kept. Therefore he could not say as to whether Harish Arora could also have been figured as an accused in this case or not as his name was only evident form the shipping bill itself. The invoice No. 10 as stated by V.P. Misra on 07.9.90 in his further statement allegedly made to this witness, as used by Harish Arora had already been got issued and used by V.P. Misra in connection with some other export. He had also not checked, verified or investigated about signatures Q3 and Q7 as he had not concluded the investigation.
18. PW 13 was R.K. Saran, ASP of EOW, CBI. As per deposition of this witness he had taken up investigation of case bearing RC No. 02/90 from Inspector R.K. Sharma and had obtained the original file from one V.P. Sharma, Superintendent of customs vide memo Ex. PW 8/A and had also collected the boxes containing the antique articles. After referring the document Ex. PW 6/A to 6/K he had also placed on record a letter addressed to Assistant Director, Interpoling, Ex. PW 13/A and after conclusion of investigation charge sheet Ex.PW 13/B was stated to have been filed before the court.
During his cross examination by Ld. Defence counsel, it was deposed by him that prior to taking up of investigation of the present case, he had no knowledge regarding the same and when he had taken the objects in his possession from the custom officer V.P. Sharma, the same were kept in boxes Ex. P7 and Ex. P8 which were seen by him in the court. However, he could not say as to whether those boxes were same in which those articles were initially kept or not. Since he had thought the RC No. 02/90 & CC No. 47/6/11 CBI Vs. Harish Arora etc. 20/29 investigation conducted by his predecessor to be proper, hence charge sheet was filed by him in the present case after having satisfied himself about the investigation conducted by his predecessor as well as himself. In his opinion, accused Harish Arora was the lone offender and that is why he had filed the charge sheet against him only. The documents were sent by him to handwriting expert for his opinion which was received by him alongwith the reasoning and he had specifically not taken any notice of para 'X' i.e para 5 in Ex. PW 6/F. He had not recorded any statement of Shri R.K. Sharma, the previous investigating officer from whom he had taken over the investigation. Remaining formal suggestions as put to him during his cross examination were denied by this witness as incorrect.
19. Thereafter prosecution evidence was closed on 21.10.2002.
20. Thereafter accused persons were examined U/s 313 Cr. P.C wherein the entire incriminating evidence appearing against them on record was put to them in its vernacular and they had denied the same as incorrect and wrong and had claimed that they were falsely implicated in the present case in order to save the real culprits.
It was though admitted by accused Harish Arora that he was the clearing agent who had submitted the shipping bill No. 2655 dated 25.6.1990 for export in the name of G. Flatcher. However, he had stated that the consignment was brought to him by Yogesh Sharma and V.P. Misra in sealed condition tied with iron strips and hence he had no occasion to see its contents. Endorsement on Ex. PW 2/A was stated to have been made by him at the instance of custom inspector and lastly it was stated by him that Yogesh Sharma who himself was working as custom clearing agent had requested him to get the goods checked as due to poor condition of his child he had to RC No. 02/90 & CC No. 47/6/11 CBI Vs. Harish Arora etc. 21/29 leave for his home with a promise to return back soon and thus believing him to be in genuine difficulty he had extended his hand of help for Yogesh Sharma.
Accused V.P. Misra had taken the defence that since he had no good basic infrastructure for export, hence he got his export documents typed at M/s Rishi Enterprises and some loose papers i.e invoices etc were always kept with Yogesh Sharma which might have been misused by him and accused Harish Arora was stated to be not known to him prior to the present case.
Not only this but both the accused persons had also examined themselves as their own witness in defence.
21. DW 1 is Harish Arora S/o Nand Lal Arora, R/o 58 New Raja Park, Shanti Path, Jaipur who had deposed that he was provided with shipping bills and the two containers by Yogesh Sharma @ Billu which were wooden boxes, sealed and packed. It was stated by Yogesh Sharma @ Billu that since his son was not feeling well and he was going to attend him hence he had requested Harish Arora to get the articles cleared. At that relevant point of time, DW1 was working with M/s King Travels and because of this Yogesh Sharma knew DW1 and requested him to do favour to him. After getting the goods inside he had got them examined and endorsed the relevant paper on its back upon direction of attending inspector and thereafter it was examined by the superintendent customs and he had marked it to ASI and he had carried the relevant papers to the respective persons. He had also deposed that Yogesh Sharma had never turned back and after leaving the papers with concerned ASI officials, DW1 had also left that place as he was told that ASI official would examine all the articles himself. After one month of that incident he was arrested by CBI and had RC No. 02/90 & CC No. 47/6/11 CBI Vs. Harish Arora etc. 22/29 also remained in custody for 12/15 days and during the said period he was taken to 23 places in Delhi and Jaipur and after that with the efforts of his father he was bailed out. Though Yogesh Sharma was also stated to have been apprehended by the CBI but later on he was let off and CBI had not bothered to go behind the details of the shipping bills having been typed at his office and about signatures of respective persons appearing there on and on other different documents. It was only this then he came in contact with V.P. Misra and CBI had let all others free but none of them except Yogesh Sharma was known to them. As per this witness Yogesh Sharma himself had told him that the goods belonged to Surender Kankaria at whose premises at Jaipur two raids were conducted by CBI. As per this witness though CBI Inspector S.K.Sharma ( IO) had stated that he was contemplating to make him (DW1) an approver in this case but unfortunately he was made an accused in this case. Even the premises of Yogesh Sharma and his brother in law was also stated to have been raided by the CBI.
During his cross examination by Ld. APP for the CBI, DW 1 had stated that the proprietor of M/s King Tracels was one Sardarji whose name he did not knew. Yogesh Sharma was also a clearing agent who used to meet him off and on at the airport itself and he knew him 67 months prior to the incident involved in the present matter. He had never worked with said Yogesh Sharma and it was for the first time that for the sake of humanity he had agreed to render his helping hand to Yogesh Sharma on account of illness of his son.
Quite interestingly it was also stated by him during his cross examination that the wooden boxes seen by him in the court were the same which were handed over to RC No. 02/90 & CC No. 47/6/11 CBI Vs. Harish Arora etc. 23/29 him by Yogesh Sharma at Airport for the purpose of their clearance at Airport. It was also stated by him that some earlier cases were also adjudged in his favour and had denied the other formal suggestions. He was stated to be working as clearing agent with M/s Kings Travels for about 2 ½ years from the date of incident and as such his work was to take the goods inside and get the relevant paper of the shipping processed by the concerned authority and sometimes he also used to make endorsement at the instance of custom inspector and thereafter used to hand over the goods to the concerned respective airlines with the relevant documents for their transportation to their destination. Prior to the present incident, he had already got cleared 50100 shipments. He further admitted it to be correct that report at point C on Ex. PW 2/A was also written by him and had denied the suggestion as wrong that it was a prevailing practice at that time that reports were written by the CHA and had stated that version of inspector Sunder Lal in that regard was incorrect.
22. DW 2 is accused No. 2 Ved Parkash Misra himself, who was summoned to face trial in this case vide order dated 19.01.1995 passed by Hon'ble Mr. Justice V.K. Jain, the then Ld. MM (as His Lordship then was). He had appeared in the witness box as DW 2 and had deposed in his examination in chief that he owed a sum of Rs. 2500 3000/ to M/s Rishi Enterprises and one day Yogesh Sharma came to his house and requested him to do some favour by not coming to the airport for some days stating that some custom officials were supposed to visit him. Yogesh Sharma had also asked him for a medical certificate of V. P. Misra which was duly handed over to him as a reason for absenting from his duty. Thereafter, when he had reached the airport he was asked that an antique item related to his company was struck at the RC No. 02/90 & CC No. 47/6/11 CBI Vs. Harish Arora etc. 24/29 airport and this witness had denied any of his dealing in respect of those articles. None of the documents related to those article was bearing his signatures or handwriting. However, he met one Dharambir Sharma, an official of ASI who had told him not to own compulsorily any such thing and let the concerned person face the music. However Surneder Kankaria contacted him with an identity of one Mr. Jain alongwith Yogesh Sharma and had assured him of all possible assistance in the custom department. However DW2 had not exceeded to their request and had contacted S. K. Bhatnagar, ASP CBI and had narrated the entire episode to him who had assured him for a genuine help. However instead of helping him, the CBI officials had arrested him and had implicated in the present case.
During his cross examination by Ld. APP for the CBI, he had deposed that he was engaged in the business of export for costumes and jewellery since the year 198586 in the name and style of M/s S.P. Handicrafts from premises No. 1367, Laxmi Bai Nagar, New Delhi and the clearing work was being done by M/s Rishi Enterprises where Yogesh Sharma was also working and one Mr. Sharma was the proprietor who also happened to be the brother in law of Yogesh Sharma. It was further deposed by him that he used to supply the stationery of invoice, JR Form and other documents to M/s Rishi Enterprises for preparing the export documents of the respective consignments at the time of export. Harish Arora was stated to be not known to him prior to the present incident and he had admitted that document Ex. PW 2/B was furnished/prepared on the stationery of his firm. However, the shipping bill Ex. PW 2/A and GR form were stated to be not belonging to his firm. Even the stamp of S. P. Handicrafts affixed at the bottom of Ex.PW 2/C was also stated to be RC No. 02/90 & CC No. 47/6/11 CBI Vs. Harish Arora etc. 25/29 not belonging to his firm nor form No. GK446899 affixed on the left top of GR form was ever supplied to him by the RBI. He had also deposed that two years prior to the date of incident, he had already stopped getting the clearing work done from M/s Rishi Enterprises but he could not tell any reason as to why the invoices were printed on stationery of his firm and only obvious reason for the same could have been told by the actual misuser of the same. Witness was stated to have never came in touch with Surender Kankaria prior to this incident. The misuse of stationery of his firm was never informed by him to any authority. Remaining formal suggestions were denied by him as wrong and incorrect.
23. After appreciating the entire testimony of all the witnesses as well as documents placed on record, I have no hesitation in holding that the prosecution has miserably failed to prove the guilt of either of the accused persons beyond any reasonable doubt on record. None of the witnesses, except PW 9, had either deposed or even whispered the name of accused V. P. Misra in his entire testimony. Even PW 9 had also deposed nothing incriminating in respect of accused V.P. Misra.
24. Further one cannot ignore the fact that both the accused persons namely Harish Arora and V.P. Misra were only working as clearing agents who used to get the items for export duly packed and in sealed condition from their exporters and they were supposed to know about the contents only through the documents of the articles or from their packets. As per PW 9 Yogesh Sharma, it was Surender Kankaria who had started the initial chain by stating that near Red Fort, the said Surender Kankaria alongwith one foreigner had met him and later on at his Nehru Place office had handed over two boxes duly packed with the help of iron strips to PW 9 for the RC No. 02/90 & CC No. 47/6/11 CBI Vs. Harish Arora etc. 26/29 purpose of their export which were later on allegedly handed over by him to accused V.P. Misra and than to accused Harish Arora, but none of the witnesses has been able to cite even a single occasion when either of the two accused persons had availed an opportunity to see or go through the contents of those packets.
25. Obviously it was for the first time when those packets were shown to and got checked by customs authorities that accused persons had came to know about their contents and not on any other occasion prior to the same. Hence, it becomes amply clear from the deposition of PW 2 himself who was an independent and impartial witness and who had stated that when the contents of the packets appeared to be antiques in nature, it was accused Harish Arora himself who had offered the same to be shown to the superintendent which shows that accused Harish Arora was working under bonafide belief that the articles in question were not antiques and were only the handicraft articles as was told by the person who had handed over the consignment to him for export. Had it not been so, then it was quite obvious and natural for Harish Arora either to have made an attempt to manage the customs officials then and there only or to have left the said consignment as abandoned with customs and flea from there. However instead of doing so, accused Harish Arora had not only taken the articles to the superintendent of customs but had also he had taken those articles to the officials of ASI for the purpose of their examination as well and not only this, but also it was accused Harish Arora himself who had brought the opinion/result of examination of inspection conducted by ASI and had submitted back the same with custom authorities. This conduct of accused Harish Arora is sufficient enough to hold that he was not ready to accept the version of the government authorities i.e the RC No. 02/90 & CC No. 47/6/11 CBI Vs. Harish Arora etc. 27/29 goods sought to be exported were actually the antique articles and was harboring under the impression that the same were to be handicraft items only and thus had made all possible efforts to get clear all the hurdles and obstacles arising in their export. This conduct of the accused is sufficient enough to point his innocence rather than particularly pointing out towards his guilt.
26. The other main witness i.e Surender Kankaria had clearly turned hostile in order to save his own skin and had not even uttered a single word against any of the accused persons which could have fasten any criminal liability upon the accused. PW9 had also not uttered even a single word against accused Harish Arora and had rather gone to the extent of admitting the fact that there existed some disputes and differences between accused V.P. Misra and M/s Rishi Enterprises over some financial matters. Hence, it was highly improbable and difficult to believe as to why accused V.P. Misra would have ever visited the office of M/s Rishi Enterprises again seeking some work when already there existed a dispute between them and they were not dealing with each other for the last quite some time.
27. Though the incident in question was stated to have taken place on 25.6.1990 but from the testimony of PW 11, who was owner of the Raj Guest House it has no where been established on record that on any such date accused Harish Arora had ever stayed in his guest house and as per his deposition, it was only on 16.7.90 that accused Harish Arora had stayed in his guest house for the first time. Investigating agency could not bring any evidence on record to even establish the presence or stay of accused Harish Arora in Delhi on the said date of incident i.e 25.06.90.
28. All these short falls casts a serious shadow of suspicion, doubt and dent in the RC No. 02/90 & CC No. 47/6/11 CBI Vs. Harish Arora etc. 28/29 prosecution case. Accordingly, accused persons stand acquitted from the charges of the offences alleged to have been committed by them. Their bail bond and surety bond stands cancelled and discharged. Original Documents of surety, if any be returned to its rightful claimant(s) after cancellation of endorsement on the same.
29. File be consigned to record room after completion of other necessary formalities in this regard.
ANNOUNCED IN THE OPEN COURT ( LOKESH KUMAR SHARMA) TODAY ON 10.07.2013. CMM/SE/Saket Court/New Delhi. RC No. 02/90 & CC No. 47/6/11 CBI Vs. Harish Arora etc. 29/29