Delhi District Court
Ashok Soloman vs State Through on 28 November, 2013
ID No.02403R0002301999
IN THE COURT OF ADDITIONAL SESSIONS JUDGE - 04
& SPECIAL JUDGE (NDPS) SOUTH EAST: SAKET COURTS: DELHI
Criminal Appeal No. 31/2012
ID No.02403R0002301999
Ashok Soloman
s/o E.H.Soloman
R/o 44, Golf Links,
New Delhi. ..........appellant
Versus
State through
Central Bureau of Investigation
CGO Complex , Lodhi Road,
New Delhi ..........respondent
Instituted on : 05th July,2012
Arguments concluded on : 08th November,2013
Decided on : 28th November 2013
ORDER
1. Journey of this case started three and a half decades ago. This appeal filed twenty one years ago, is directed against the Judgment dated 19.02.1992 passed by Learned Metropolitan Magistrate, New Delhi in a case (RC no. 09/1977) whereby appellant was convicted for the offence punishable u/s 120-B IPC r/w Section 13 Dangerous Drugs Act. He was sentenced to undergo rigorous imprisonment for six months and a fine of Rs. 5,000/- was imposed upon him. In default of payment of fine, appellant was required to undergo rigorous imprisonment for three months.
2. I have heard submissions advanced by Sh. Ramesh Gupta Learned senior counsel for appellant and Sh Naveen Matta Learned Special Public Prosecutor for the CBI and have perused material on record.
3. Briefly stated relevant backgrounds facts of the case leading to the filing of this appeal, are that a report u/s 173 Cr. P. C. was filed by CBI against Ashok Solomon, Ramesh Solomon, Pradeep Chand, Ashok Dass, Pradeep Kumar Ashok Solomon Vs. CBI - CA No. 31/2012 1 ID No.02403R0002301999 Malhotra, Mahesh Kumar Sharma and others alleging that during December, 1976, accused Ashok Solomon, Ramesh Solomon, Pradeep Chand, Pradeep Kumar, Ramesh Kumar Srivastav and other persons entered into a criminal conspiracy to illegally export of hashish out of India to USA. It is alleged that in furtherance of said conspiracy, accused Noor Charan, hired a portion of a flat at Tolstoy Marg and got invoice forms and letter heads printed in the name of M/s New India Export, a fictitious firm floated for the purpose of illegal export of hashish. Noor Mohd., opened a current account in State Bank of Bikaner and Jaipur on 27.01.1977 with initial deposit of Rs. 500/- under the assumed name of Satish Kumar Paul. It is alleged that accused Mahesh Kumar hired the ground floor of the portion of a building in South Extension, Part-I for the purpose of storing and packing hashish. He purchased hand loom cloth from M/s. Shanti Lal Krishan lal with a view to wrap the cloth upon the wooden spindles containing hashish. It is further the case of prosecution that accused Pennan was employed by Roop Chand for packing hashish. On 07.05.1977, accused Ashok Dass and Ramesh Kumar Srivastav presented consignment of 42 package containing hand loom fabrics for exporting to California. The consignment was shipped to USA by Japan Airlines flights. Vipin Kumar Sharma and Ashok Kumar Soni were engaged to clear the consignment on behalf of shippers. On 12.05.1977, it was revealed that consignment of 42 bales shipped by M/s New India Export reached Los Angles International Airport and on 13.05.1977, hashish was detected there.
3.1 It is alleged that said consignment was again shipped for Minneapolis, USA on 18.05.1977 and when it reached there on 20.05.1977, its controlled delivery was given. It was found that delivery was handled by Ashok Solomon and Pradeep Chand. Ultimately, 1,296 pounds of hashish was recovered in those wooden spindles. On 19.05.1977 accused Krishan Kumar, where name was actually Ashok Ashok Solomon Vs. CBI - CA No. 31/2012 2 ID No.02403R0002301999 Das was apprehended from a marriage party by Custom Officials of India. 3.2 Ashok Solomon, Ramesh Solomon and Pradeep Chand were arrested in USA. They were convicted and sentenced by the Court at USA on 20.05.1977 for possessing and importing hashish. It is alleged that on the night of 21.05.1977, a telephonic conversation between Ashok Solomon and Ashok Dass of Canada was taped by Canadian Police, which indicated that there was discussion about the arrest of Satish @ Ashok Dass in connection with the export of hashish in 42 bales. This information was passed to Indian customs. It is alleged that co-accused Ashok Dass in his statement before the Customs authorities stated that Ashok Solomon had given Rs. 5,00,000/- while going underground, with instructions to purchase and export hashish in USA. Arrest of accused Ashok Dass led to arrest of accused Pradeep Kumar Malhotra, who got recovered 12 grammes of hashish from House No. A-172, Defence Colony on 20.05.1977 and 140.650 Kilograms of hashish from House No.7, Padmini Enclave on 20.05.1977. It was revealed that some quantity of hashish was also lying in the premises of one Roop Chand Sharma, search of which led to the recovery of 139.500 Kilograms of hashish and 95 wooden spindles were recovered from the premises.
3.3 On 21.05.1977, Sh. K. L. Marwah Asst. Collector Customs sent a Letter to CBI and thereafter, on 22nd of May 1977, FIR was lodged by Superintendent of Police CBI. Under section 13 of Dangerous Drugs Act read with 120-B IPC and section 61 of Punjab excise Act. On 23.05.1977, CBI raided premises no. B-51 South Extension, New Delhi and arrested accused Pannan. On 25.05.1977, search was conducted by CBI official at B-74 Defence Colony and on 20.07.1977 accused Noor Charan was arrested. Accused Mahesh Kumar Sharma and Ramesh Kumar Srivastav were also arrested. Investigation in this case was conducted by two agencies. At the initial stage, Customs Department investigated Ashok Solomon Vs. CBI - CA No. 31/2012 3 ID No.02403R0002301999 the case. As per the case of prosecution, hashish hidden in a consignment of 42 bales of hand loom fabric was detected by sniffer dogs at Los Angeles, USA and information in this regard was flashed by Drug Enforcement Administration of USA to the Directorate of Revenue Intelligence in India. On receipt of message from USA, customs authorities took accused Ashok Dass and Pradeep Kumar Malhotra in custody. They recorded their statements u/s 108 of the Customs Act and claimed to have searched house No.A-172, Defence Colony and house No.7, Padmini Enclave, New Delhi and recovery of hashish and other incriminating material was allegedly made from the said two places.
3.4 Inspector B.N. Mishra of CBI went to USA and collected official documents in USA showing the complicity of appellant/Ashok Soloman and co accused Ramesh Soloman and Pradeep Chand. CBI raided house No.B-51, NDSE-I and made recovery of hashish and other material stored there. Some other places were also searched and arrested several other accused namely, Noor Charan, Mahesh Kumar Sharma, Pannan and Ramesh Kumar Srivastva during the course of investigation.
3.5 On conclusion of investigation, charge sheet was filed on 29th June, 1978 by the CBI. Admittedly, at that time accused Ashok Soloman, Ramesh Soloman and Pradeep Chand were inside Federal Jail, Minneapolis, USA after being convicted there. Other six accused namely Ashok Dass, Pradeep Kumar Malhotra, Noor Charan, Mahesh Kumar Sharma, Pannan and Ramesh Kumar Srivastva put in appearance before the Trial Court in this case. Co accused Ramesh Soloman and Pradeep Chand raised question of double jeopardy on the plea that they had already been convicted for the same offences in USA. They contended that sanction of the Union Govt. under section 188 Cr PC was necessary for their prosecution. Their contentions were rejected by the Trial Court. Ashok Solomon Vs. CBI - CA No. 31/2012 4
ID No.02403R0002301999 Consequently, charge was framed and examination of prosecution witnesses commenced. Seven prosecution witnesses were examined during the period from 08.11.1982 to 17.02.1983. Ashok Soloman arrived in India after serving his term of imprisonment in USA. He was produced before the Trial Court on 04.04.1983. Sanction u/s 188 Cr. PC was obtained by the prosecution and filed in Court on 20.03.1984. Thereafter, appellant/Ashok Soloman and co accused Ramesh Soloman and Pradeep Chand made separate applications seeking protection of section 300 Cr PC against double jeopardy and they further contended that the sanction obtained u/s-188 Cr PC against them was barred by time. These applications were rejected by Learned Predecessor of this Court on 22.05.1984. Charges were framed afresh against all the accused on 02.08.1984 and trial commenced.
3.6 During trial, accused Mahesh Kumar Sharma and accused Noor Charan expired and accused Pannan was declared proclaimed offender on 14.11.1990. Six accused persons faced trial.
3.7 Charges were framed under section 120-B IPC read with section 13 Dangerous Drugs Act against all the accused for conspiracy to export 1296 pounds hashish out of India vide shipping bill No.2551 dated 07.05.1977. Accused Ashok Dass, Noor Charan and Ramesh Kumar Srivastva were charged under section 61 of Punjab Excise Act for being in possession of 1296 pounds of hashish at Palam Airport on 07.05.1977. Other accused persons were also charged u/s-13 Dangerous Drugs Act for making export of the said quantity to the USA. Accused Pradeep Kumar Malhotra was charged under section 61 (1)(a) of Punjab Excise Act for possessing 140.650 kg. of hashish at 7, Padmini Enclave, New Delhi and for recovery of 12 grams of hashish from his residence A-172, Defence Colony, New Delhi. Accused persons pleaded innocence and claimed trial. Ashok Solomon Vs. CBI - CA No. 31/2012 5
ID No.02403R0002301999
4. In order to establish accusations against accused persons, prosecution examined Forty Nine witnesses. Brief outline of the testimony of prosecution witnesses is as under:-
4.1 J. C. Sharma (PW-1) joined investigation during search of house No.B-51, NDSE-I, New Delhi. He placed on record search memo (Ex. PW1/A). J. N. Srivastwa (PW-2) joined investigation during the search of house No.B-51, NDSE-I, New Delhi. Vijay Kumar (PW-47) was cross examined by Learned Prosecutor. Smt. Leela Wati (PW-3) landlady had let out house no. B-51 NDSE-I to Mahesh Kumar Sharma. She placed on record lease deed (Ex PW2/1). Roshan Lal Bhandhari (PW-5) , a broker through whom the premises No. B-51, NDSE-I, New Delhi was let out to accused Mahesh Kumar Sharma by Lila Wati (PW-3). Manohar Lal (PW-6) landlord of the premises no. A-277 Defence Colony.
New Delhi. He stated that accused Pradeep Kumar Malhotra had come to him with Ashok Dass when premises was let out. He also stated that there was a separate telephone no. 624428 at the first floor.
4.2 C. L. Talwar (PW-8) was member of the raiding party that searched the house no. A-172, Defence Colony led search of 7, Padmini Enclave. He testified that accused Pradeep Kumar Malhotra took the key of the said house from his residence at A-172, Defence Colony and then led the raiding party to the said place. N. C. Gupta (PW-11) searched premises no. A-172, Defence Colony, New Delhi alongwith S.J. Arora Customs Officer He is witness to the recovery memo (Ex.PW-11/A). He deposed that 12 grams of charas and three carbon copies Ex.PW-11/B-1 to B-3 of an invoice of M/s New India Exports were recovered from a wooden Almirah in the bedroom of the ground floor of the said house in the presence of accused Pradeep Kumar Malhotra.Hari Ram Sharma (PW-13) joined investigation in search of house of Noor Charan in Parmanand Colony and was witness to the seizure memo (Ex. PW13/B) of cable (Ex.PW-13/A) which was recovered from a trunk. Gobind Ram (PW-18) participated in the search of barsati of defence colony house, was witness to the search memo (Ex.PW18/A). 4.3 J. M. Chaudhary (PW-4) Superintendent Customs Preventive in 1977, was Ashok Solomon Vs. CBI - CA No. 31/2012 6 ID No.02403R0002301999 witness to the statement (Ex.PW-4/A) of accused Pradeep Kumar Malhotra and statement (Ex.PW-4/B-1 to B-4) of accused Ashok Dass. He deposed that their statements were recorded u/s-108 of The Customs Act and attested by O.P. Chopra. He is also witness to the statement (Ex.PW-4/C) of Jai Nath. N. Dass Gupta (PW-19) posted as Inspector, Customs placed on record report at mark C on the reverse of shipping bill (Ex.PW19/1). He deposed that after thorough checking, consignment was put on the aircraft. O.P. Chopra (PW-20) posted as Inspector Customs (Preventive) deposed that accused Ashok Dass was brought to Customs house on 19-5-77 from a marriage party after he was identified by R.K. Soni and Sharma @ Gogi. He placed on record statement (Ex.PW-20/A) written by accused Pradeep Kumar Malhotra in his presence. S. J. Arora (PW-14) officer of preventive branch of Customs, associated two public witnesses with the search i.e. N.C.Gupta (PW-11) living on the first floor of house No. A-172, Defence Colony and Major Madan, resident of the same locality. M. L. Kapur (PW-22) Superintendent, Customs, Air Cargo Unit, Palam, deposed that after inspection by the committee, consignment was presented before Customs at Jal Warehouse on 07.05.1977 and papers were first presented to him. H. C. Gupta (PW-28) Inspector of customs, examined the consignment at JAL Warehouse at the airport made inspection in the presence of Gogi And Soni. K. L. Marhwa (PW-34) Assistant Collector Customs, placed on record complaint (Ex.PW-34/A) stated that preliminary investigation was made by customs officers on receipt of information about the seizure of hashish concealed in wooden spindles at Los Angles Airport in America. 4.4 Rajinder Kumar Soni (PW-21) working as clearing agent in partnership under the name and style of Goraviza International, cleared one consignment of M/s New India Exports, Rohit House, New Delhi in 1977 and placed on record shipping bill (Ex.PW-19/1) relating to the said consignment. He deposed that two other consignment of the same firm relating to shipping bills (Ex.PW-21/C and PW-21/D) were also cleared by his firm. He testified that the custom officers had come to make enquiry about the consignment and the documents of the consignment were given to him by one Krishan Kumar, who was traced in a marriage party on the same night whose real name was revealed as Ashok Dass. Statements (Ex.PW-21/A and PW-21/B) were written by his partner Vipin Sharma Ashok Solomon Vs. CBI - CA No. 31/2012 7 ID No.02403R0002301999 and he signed the same. Vipin Sharma (PW-43) was the clearing agent. He stated that Customs Officers made enquiry about the shipment of 42 bales and that he and his partner Soni had shown Krishan Kumar to them at a marriage party and had written statement (Ex.PW-21/A) in the presence of his partner.
4.5 Ramesh Chander Gosain (PW-7) importer, incharge, godown, ITO Building and deposed that C. L. Talwar deposited three suit cases and two gunny bags in a sealed condition. Kamla Bhandari (PW-12) was looking after 7, Padmini Enclave as attorney of Abha Bhandari. She deposed that the premises in question had been let out by her to one Rajiv Malhotra. She deposed that tenant executed a note (Ex.PW-12/A) which was handed over by her husband to the customs officers vide (Ex.PW-12/B). Shadi Lal (PW-15) cloth merchant identified cloth lying in B-51, NDSE-I, New Delhi as having been sold by him to one "Sharmaji". Sucha Singh (PW-16) deposed that recovered spindles were manufactured by him at the instance of one 'M. Kumar'. C. S. Rawat (PW-17) was a witness to memo (Ex. PW17/A) of slip (Ex. P-28/B to Ex. P-28/B-3). Dinesh Kumar (PW-23) deposed that one small store adjacent to the lift at 1204 Rohit House, 3, Tolstoy Marg, New Delhi was given by him on rent to Noor Charan.
4.6 K. L. Talwar (PW-10) from Reserve Bank of India and he has stated that he allotted code No. to the firm on application (Ex.PW-10/A). Rajeshwar Kaushik (PW-25) handed over bank documents of State Bank of India, Defence Colony to CBI vide memo (Ex.PW25/A). Surinder Kumar (PW-26) placed on record account opening form (Ex.PW-26/A). H.R. Aneja (PW-27) Branch Manager of the State Bank of Bikaner & Jaipur placed on record specimen signature sheet (Ex.PW-27/B), statement of account (Ex.PW-27/C) and pay in slip (Ex.PW-27/D). A. K. Sareen (PW-38) Branch Manager of State Bank of India, Defence Colony deposed that an account in the name of M/s P & B International was opened on 15.12.76. He placed on record account opening form (Ex.PW38/A) which was attested by him.
4.7 Ct. Yad Ram (PW-29) brought the remnants samples form CFSL. K. P. Tripathi (PW-31) Incharge of Malkhana CBI deposed about the deposit of case property and dispatch of samples to CFSL. He produced malkhana register in the Court and Ashok Solomon Vs. CBI - CA No. 31/2012 8 ID No.02403R0002301999 Photostat copies of the relevant entries (Ex.PW31A-1 to A-28) and (Ex. PW29/A). ASI Kashi Ram (PW-32) took one packet of sample to CFSL on 1.6.77 along with the forwarding letter vide (Ex.PW32/A). S. N. Jain (PW-9) handed over the application to CBI by vide letter (Ex.PW-9/A). Ram Singh Kohli (PW-30) General Manager Telephones, Delhi deposed that phone no. 624428 was installed in premises no. B-51 NDSE-I, New Delhi on the application of M.K. Sharma. He deposed that an international call was made to U.S.A. from the said telephone on 3.5.77(Ex.PW30/B).
4.8 Vishnu Partap Singh (PW-33) deposed that in his presence specimen signatures of accused Noor Charan were taken on (Ex. PW33/A-1 to A-24). Des Raj Mudgil (PW-35) deposed that in his presence specimen signatures of accused Pradeep Kumar Malhotra were taken vide (Ex. PW35/A-1 to A-12). Prem Singh (PW-37) deposed that in his presence specimen signatures of four persons were taken vide (Ex. PW37/A-1 to A-13; Ex. PW37/B-1 to B-15; Ex. PW37/C-1 to C-17). M. K. Jain (PW-40) handwriting expert placed on record his reports (Ex.PW40/18 and PW40/4). N. C. Verma (PW-42) was a witness to the specimen writings and signatures of Pradeep Kumar Malhotra, Ashok Dass and Roop Chand. Krishan Lal (PW-36) deposed that in the year 1970, he had a tea stall at B-50, New Delhi Estate Part-I (NDSE). Two persons used to live on the ground floor of B-51 N.D.S.E. New Delhi South Extension Part-I, who used to come to his shop for taking tea and bread. One of them was known as 'Shav' but did not remember the name of other person. 4.9 Sh. Brajesh Kumar (PW-39) Addl. Chief Metropolitan Magistrate conducted TIP Proceedings. Hashish was segregated from the spindles and samples were drawn. G. S. Roy (PW-41) was Technical Officer in the Textiles Committee where the consignment was presented for inspection. He placed on record inspection report (Ex.PW-40/9) and certificate (Ex.PW-41/A) and stated that lead seal was put on the consignment after inspection. He stated that consignment was presented on behalf of M/s New India Exports. Application was registered at Serial No.1805 on 21.4.77 in the office of Textile Committee. After inspection by committee, consignment was presented before Customs at Jal Warehouse on 07.05.1977. Papers were presented to N.L. Kapoor (PW-22), who assigned the consignment to H.C. Gupta ( PW-28) for inspection, who on inspection found that the Ashok Solomon Vs. CBI - CA No. 31/2012 9 ID No.02403R0002301999 packages contained hand loom fabric as per the declaration. He found that the seal of the Textile Committee on the packages was intact. On the basis of report submitted by H.C. Gupta, consignment was cleared by N.L. Kapoor (PW-22) and consignment was sealed with custom seal No.'6'. Finally, consignment was loaded in the Aircraft in the presence of N. L. Dass Gupta (PW-19), posted as Inspector Customs in the Airport in 1977. Sh. N. L. Dass Gupta checked the seals of customs on packages before loading and deposed that the seals were intact. PW-41 checked the shipping bill (Ex.PW19/1) and airway bill (Ex.PW19/2). Pran Kumar Sharma (PW-45) placed on record sanction (Ex.PW45/A) granted by the Central Govt.U/s 188 Cr.P.C. Praveen Kumar (PW-46) could not identify the person, whose account was introduced by him at State Bank of India, Defence Colony. 4.10 Inspector N. P. Tiwari (PW-44) investigating officer verified the existence of M/s P & B International. R. N. Kaul (PW-48) investigating officer posted as DSP/CIU/N. C. Branch, CBI, New Delhi placed on record letter (Ex. PW48/A) for seeking opinion. He sent samples to CFSL vide letter (Ex. PW48/B and Ex. PW48/C). B. N. Mishra (PW-49) investigating officer deposed that after the search of B-51 NDSE-I, he got secret information about accused Pannan was loitering in the area. He recovered the keys of the said house from him. On interrogation of Pannan, PW-9 came to know that Mahesh Kumar Sharma was residing at B-74 Defence Colony. He placed on record copy of confessional statement (Ex.PW49/G-1) made by accused Ashok Solomon on 11.8.77 in case no. 4-77- Criminal-81 united states of America Vs. Ashok Soloman & others and also certified copy of confessional statement (Ex.PW49/G-2) made by accused Ramesh Solomon and Pradeep Chand in the said case at US. He placed on record (Ex.PW49/G-4) transcript of preliminary hearing held before Magistrate J. Earl cudd on 31st May,1977 in case no. 428-77-01502M against Ashok Solomon & others in united states District Court, IV Division. He placed on record (Ex.PW49/H-1 to Ex.PW49/H-10) certified copies of documents obtained from US. PW-49 deposed that he brought a sample of hashish weighing 98 grams in sealed condition from USA alongwith letter Ex.PW49/C.
5. Statement of appellant Ashok Solomon was recorded u/s 313 Cr.P.C Ashok Solomon Vs. CBI - CA No. 31/2012 10 ID No.02403R0002301999 wherein he denied the allegations and pleaded innocence. He stated that besides Ramesh Solomon-his real brother, he did not know any of the other accused persons in this case. He was living in Canada since 1972, since the age of 19 and did not know Ashok Dass co accused prior to this case. Accused Ashok Solomon stated that he and Ashok Dass were studying in the same school but he stated that Ashok Dass was not his classmate. He stated that Ashok Dass referred to by him was his school mate Ashok Dass s/o Samuel Prem Dass, whose sister he later on married and who was his brother-in-law. At the time of commission of this offence, he was not in India and he did not know anything about this case. He had been away from India since March 1976. Ashok Solomon stated that he was detained in America but he was not disclosed any facts of the said case. He denied that he had made any statement in America. He stated that he was not produced before any Court in America. He denied that he was known as 'Kake'. He denied that during the year 1976, he conspired with his brother Ramesh Soloman, Pradeep Chand, Ashok Dass, P. K. Malhotra, Mahesh Kumar and other co accused to smuggle hashish to USA from India or for this purpose, he gave Rs. Five lacs to Ashok Dass for procurement and smuggling of hashish out of India. Appellant denied that he pleaded guilty to the charges in the United State District Courts, District of Minisota. Accused stated that neither he made statement nor he signed any statement ,while he was in custody. Accused has denied that on 10.05.1977, he made a telephone call to accused Ashok Dass from USA, who informed him that the hashish had already been sent through Japan Airlines and the amount of Rs. Five lacs were given to Ashok Dass by him were fully spent. He stated that he did not know Ashok Dass prior to this case, neither he made any phone call to him nor did he gave him any money. Appellant denied that on 21.05.1977, he made a telephone call to R.K. Soni on telephone no. 455556 or inquired form him whether Krishan @ Ashok Dass Ashok Solomon Vs. CBI - CA No. 31/2012 11 ID No.02403R0002301999 had been arrested regarding the export of hashish or R. K. Soni informed him that Ashok Dass and P. K. Malhotra were arrested. Accused sated that neither he knew any R. K. Soni nor he ever made a phone call to him at any number at all.
6. Allegations made against appellant Ashok Soleman summarized in the impugned order are :-
(a) Ashok Soloman was alleged to be the kingpin of the conspiracy,
(b) On the night of 20th May, 1977. Appellant allegedly had a telephonic conversation with one Ashok Dass (name sake of accused No.4) of Canada and discussed with him the arrest of accused no.4 in connection with the consignment of 42 bales,
(c) Appellant allegedly gave Rs.5 lakh to accused no.4 for purchase and export of hashish and
(d) appellant confessed his guilt before the District Court in USA, that he had arranged to export hashish from India and consequently and was convicted and sentenced in a USA Court District.
7. No other allegation against the appellant was brought to the notice of this Court by Learned Special Public Prosecutor for CBI.
8. Sh. Ramesh Gupta, Learned Senior Counsel contended that prosecution has miserably failed to prove its case and appellant was wrongly convicted and that prosecution case has to stand on its own legs. In the present case when prosecution failed to stand on its legs, Ld. Trial Court took an erroneous view. Impugned Judgment clearly noted that support for the prosecution case came from unexpected quarters as Ashok Soloman filed an application dated 30.09.1983 stating that he was arrested in USA in May 1977 for the charge of contravention of Drug Rule/Act and was subsequently convicted therein December, 1977. Learned Trial Court took these applications as admissions. In those applications, it was mentioned that these were alterations. Plea bargaining which included bargaining at Ashok Solomon Vs. CBI - CA No. 31/2012 12 ID No.02403R0002301999 the stage of charge took place in USA and therefore, it could not be termed as unequivocal and voluntary admissions and therefore the conclusion of Learned Trial that "since the consignment has been admitted to be the same therefore, it follows automatically that the material sent from India was hashish" were patently erroneous. It is submitted that accused can take alternative or conflicting pleas. Admittedly, no questions regarding filing of application by accused were put to the accused in his statement under section 313 Cr. PC and therefore, this material, otherwise also could not have been considered while forming an opinion by the Learned Trial Court against Ashok Solomon. Learned counsel referred "Randhir Singh vs. State1" wherein an admission made in a written application signed by the counsel of the accused was not put to the accused at the time of examination under section 313 Cr. P. C 1973, therefore, it was held that no reliance could be placed on such statement that was allegedly made on behalf of the accused. In this regard reliance was also placed upon "State of Punjab vs Hari Singh and others"2;
"State of Karnataka vs M. Muniswamy"3 and "Asraf Ali vs state of Assam4 and John Pandian Vs. State5.
9. Per Contra, Learned Special PP argued that it cannot be held that Learned Trial Court erroneously relied upon the admissions made by the co-accused persons in several applications made by them during the pendency of trial. Accused was represented through Counsels who, acted on the advice of his counsels, was supposed to know the meaning and purport of the averments being made during the 11980 CRLJ 1379 22009 2 SCC CRI 32002 10 SCC 546 42008 V AD CR SC 423 52011 3 SCC CRI 550 Ashok Solomon Vs. CBI - CA No. 31/2012 13 ID No.02403R0002301999 pendency of trial as well as the consequences thereof. It would be a mockery of the criminal procedure as well as the law of evidence if an accused is allowed to get away with his admissions made during the pendency of trial even though the same may be contained in the application moved by the accused. Learned Special Prosecutor argued that it would further be pertinent to mention here that the mandate of Section 30 of the Indian Evidence Act is that when more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other persons as well as against the person who makes such confession and in the present case, it cannot be held that the averments made by the co-accused or appellant during the pendency of trial in the several application moved by them, were casually made for deriving some legal benefits simplicitor.
10. Learned Prosecutor urged that the applications moved by the co- accused persons formed part of the record of the trial Court and the Learned Trial Court acted absolutely in accordance with the law by relying upon any statement made by an accused person in his own application making admission of the facts and circumstances which were sought to be proved by the prosecution. He submitted that as per Section 21(2) of the Indian Evidence Act, an admission may be proved by or on behalf of the person making it, when it consists of a statement of the existence of any state of mind or body, relevant or in issue, made at or about the time when such a state of mind or body existed, and is accompanied by conduct rendering its falsehood improbable.
11. Sh. Matta, urged that admission made by the co-accused persons in the present case in the form of averments made in their own applications made to Ashok Solomon Vs. CBI - CA No. 31/2012 14 ID No.02403R0002301999 the Learned Trial Court was not the only evidence against the accused persons, but was corroborated in the material particulars by other reliable evidence which were proved beyond reasonable doubt by prosecution. Learned Prosecutor argued that it has been clearly proved on the basis of evidence on record that the material exported from India was hashish. It is relevant to note here that though the Learned Trial Court rejected the foreign documents sought to be proved by the prosecution merely on the basis of technicality, what was held against the appellant/accused was their own admissions and that Ashok Soloman, Pradeep Chand & Ramesh Soloman were convicted for importing hashish into USA. Learned Special Prosecutor submitted that the prosecution case against the appellant stood proved inasmuch the appellant himself admitted by way of applications that the consignment in respect of which he was convicted and punished in USA was the same which was the subject matter of the present case.
12. It is submitted that the object and purpose of Section 313 of Cr.PC was only to afford to an accused an opportunity of knowing as to the incriminating material and evidence which the prosecution sought to rely upon in proving the case against the accused and also to furnish explanations if any with respect to the materials and documents which were put to the accused and it certainly could not be the object of the aforesaid section to bind the Trial Court to accept whatever the accused stated in answer to the questions as a gospel truth of the facts and circumstances and moreover, a blatant inconsistency in the statements made by the accused can always be taken into consideration by the trial Court to conclude that the accused was inconsistent in his stand and, therefore, his defence ought to be rejected.
13. Accused Ashok Solomon, Ramesh Solomon and Pradeep Chand filed many applications at different stages and pleaded that they had been already Ashok Solomon Vs. CBI - CA No. 31/2012 15 ID No.02403R0002301999 convicted and punished for the offence of conspiracy in USA. Their contention was opposed by the prosecution and repelled by the Court on the ground that the conspiracy to export hashish from India was distinct from the conspiracy to import the drug into USA. Accused Ramesh Solomon made an application on 11/13.8.1982 before the Trial Court and in para 5 of the said application stated that , "the accused is entitled to protection form double prosecution for the same offence because the offence mentioned in the challan is exporting out of India a controlled drug. The effect of this is an offence committed during his absence from India of exporting drug which export could not be made by him and he already stands convicted of importing the said drug consignment in USA. The application was rejected by Ld. MM vide order dated 30.8.82. Revision filed by co accused Ramesh Soloman was also dismissed by the then ASJ on 21.07.1983, observing that :-
"So if the accused was held guilty by American Court for entering into conspiracy to import a contraband drug i.e. hashish form India, that I think will not be covered by provision of section 300 Cr PC or Article 20 sub-articles (2) of the constitution for trial in India for entering into conspiracy, for exporting drug outside India...............the question of jurisdiction is altogether different. I have already mentioned that there cannot be any export without import and vise-versa. However it may be that sometimes offences are distinct."
14. Trial Court noted that prosecution placed on record the certified copies of many documents which B.N.Mishra collected from USA but saw no reason to admit these certified copies in evidence. There is no evidence to show as to how and when the photographs referred to in Ex.PW49/H3 were taken. Similarly, the persons who conducted search in USA and seized documents referred to in Ex. PW49/H-1,H-2,H-4,H-5,H-6 and H-10 have not been examined and no support could be obtained from these documents. Certified copies Ex. PW49/G.1 to G.4 and Ex. Ashok Solomon Vs. CBI - CA No. 31/2012 16
ID No.02403R0002301999 PW49/H1 to H-11 were held by Trial Court as not proved in accordance with law and for this reason, Learned Trial Court rightly ignored the same. There was no certificate of a Notary Public or of an Indian Counsel as required by Section 78 (6) or a representative of the Central Government in USA as required by Section 86 of Indian Evidence Act.
15. Learned Trial Court thereafter proceeded further to note that "Support for the prosecution case has come from unexpected quarters. Accused Ashok Solomon made an application on 30.9.83 and stated as follows in para 3 and 6.3:
"3. The accused applicant was arrested in USA in May, 1977 on the charge of contravention of Drug Rule in force there and was convicted there in December.77".
"6.3 The accused having been convicted for the offence conspiracy to export from the same consignment( which is the subject matter one present prosecution) is protected under the Private International Law Section Cr.P.C. and Article 20(2) of the Connation against double prosecution"
16. On 01.05.1984, Ashok Solomon made another application and made the following statement in para 3 f, thereof, "3.f. Prosecution is barred u/s 300 Cr.P.c. read Article 20 Constitution because the quantity of 1296 pounds is the same in respect of which applicant was convicted in US on 02.12.1977"
17. Accused Ramesh Solomon and Pradeep Chand also made similar application on 1.5.84 because applications was signed by the accused and also by defence counsel." It was further observed by Learned Trial Court that "from these application two things are established beyond doubt firstly that the content which was sent from India by Ashok Dass was received Ashok Solomon, Ramesh Solomon and Pradeep Chand in USA and was seized and secondly that the said Ashok Solomon Vs. CBI - CA No. 31/2012 17 ID No.02403R0002301999 consignment contained drugs for which the said three accused were convicted in USA. Thus, the identity of the consignment as well as the nature of contents of the same have been established beyond all doubts by the admissions of the accused themselves. It was submitted that the accused were convicted in USA on the basis of change of plea. In other words, the argument is that the conviction was based on a plea of guilt which was obtained by inducement to drop certain charges. This argument again finds no support from the record because the accused did not challenge their conviction in USA at any stage. Only relevance of the foreign judgment, which has been unequivocally admitted by the accused themselves, was that the conviction was for the offence of importing hashish in USA. Since the consignment has also been admitted to be the same, it follows automatically that the material sent from India was hashish."
18. This Court is in agreement with the submissions of Sh. Matta, Learned Special Prosecutor that case of the appellant does not fall within the ambit of Section 300 Cr.P.C and Article 20(2) of the Constitution affording protection against double jeopardy. This contention was raised by the accused at the beginning of the trial and was contested before the higher Court also but was rejected. In "Jintender Panchal vs. Intelligence Officer, NCB & Anr. 6" wherein the offence for which the appellant was tried in the USA was in respect of a charge of conspiracy to possess a controlled substance with the intention of distributing the same, whereas the appellant was being tried in India for offences relating to the importation of the contraband article from Nepal into India and exporting the same for sale in the USA. It was noted that while the first part of the charges would attract the provisions of Section 846 read with Section 841 of title 21 USC Controlled Substances Act, the latter part, being offences under the NDPS Act, 1985, would be triable and punishable in India, having particular regard to the provisions of Section 3 and 4 of 6(2009)II AD (CR) SC 504 Ashok Solomon Vs. CBI - CA No. 31/2012 18 ID No.02403R0002301999 the Indian Penal Code read with section 3(38) of the General Clauses Act, which has been made applicable in similar cases by virtue of Article 367 of the Constitution. It was held that the offences for which the appellant was tried and convicted in the USA and for which he is now being tried in India, are distinct and separate and do not, therefore, attract either the provisions of Section 300(1) of the Code of Article 20(2) of the Constitution. These observations are squarely applicable in the present case. Principle of double jeopardy requires that the ingredients of the offenses have to be identical for an accused person to claim protection against double jeopardy. In the present case, appellant/accused was convicted and punished in USA for the offence of "import of hashish into USA". Whereas present case pertained to conspiracy to export drugs outside India. In these circumstances, plea of the appellant is untenable and deserves to be rejected.
19. It is true, that if two offences are held to be distinct, then whatever happened in USA cannot be taken as evidence in this case even for the limited purpose of showing the complicity of any person in the offence of conspiracy which took place in India to make export of drugs from India and it cannot be held that the fact that they received the consignment in USA is no doubt evidence of their involvement in India too, but more was required to be shown by the prosecution. Conspirators who operated in India have not said a word in their statements U/s 107 or 108 of Customs Act against Ramesh Solomon and Pradeep Chand. Therefore, Trial Court was left with appellant-Ashok Solomon.
20. Prosecution had placed reliance upon (Ex. PW34/B) to show that Ashok Dass made an international Call to USA on 3 rd May, 1977 from telephone No. 624428 installed on the first floor of House No. A-277, Defence Colony but it is of no help as Manohar Lal (PW24), landlord of the said premises deposed that the telephone on the first floor remained under his lock and strangely enough no Ashok Solomon Vs. CBI - CA No. 31/2012 19 ID No.02403R0002301999 question was put to him whether charges for the international call were paid by Ashok Dass to him or not. The documents obtained from USA are not proved in accordance with Law and cannot be taken into consideration. Evidence of prior acquaintance between Ashok Dass and Ashok Solomon pressed into service by the Trial Court is that Ashok Dass has admitted that he was a student of United Christian School, Ludlo Castle Road, Delhi but added that Ashok Solomon was not in his class. Thus, he admitted that they were school mates and not classmates."
21. Learned Trial Court has noted that "Ashok Solomon made a similar statement on 05.06.1990 and later on he realized the mistake and modified his stand and stated on 19.07.1990 in response to question no. 111 that the Ashok Dass referred to in question no.1 was not his co-accused but another person of the same name who happened to be his brother-in-law. It was observed that "this improvement made by accused Ashok Solomon on second thought would definitely help the prosecution." It has not been explained in the impugned Judgment as to how it will help the prosecution? It was noted that Ashok Solomon has gone to the extent of denying U/s 313 Cr PC his trial and conviction in USA, which he had specifically admitted in the earlier applications made by him on 30.9.83 and 1.5.84. As held in AIR 1957 S.C.211 Prasadi Vs. State of Utter Pradesh, the total denial of the criminal trial in USA on the part of Ashok Solomon is a conduct inconsistent with his innocence."
22. It was further noted that "the statement of PW21 R.K. Soni that Ashok Solomon @ Kake had booked several consignments through him. R.K.Soni does not deny having made the statement to police that Ashok Solomon had called the phone on 21.5.77 to enquire about the arrest of Ashok Dass. He merely says that he does not remember due to lapse of time. The statement made to police cannot be used as evidence but the statement made by Vipin Sharma (PW43) on this point in Court will Ashok Solomon Vs. CBI - CA No. 31/2012 20 ID No.02403R0002301999 certainly show that a telephone call was received on the date in question. Vipin Sharma has stated that he did not receive any telephonic call from Canada but soni told him about having received such a call. This statement of Vipin Sharma shows that Ashok Solomon was taking active interest in the matter in India. "The confessional Statement Ex. PW4/E made by Ashok Das also implicates Ashok Solomon". Singnificantly, it was noted that "the confessional statement of Ashok Das can of course not be used as evidence within the meaning of section 3 of the Evidence Act but it is certainly a matter which can be taken into consideration to seek assurance for the inference flowing from other evidence. Therefore, the involvement of Ashok Solomon in the conspiracy is writ large on record."
23. Now, as regards other two co accused, who were similarly placed, Trial Court had this to say, "however, I find no evidence whatsoever against Ramesh Solomon and Pradeep Chand. No covert or over act whatsoever has been attributed to them. There is no suggestion that they gave any direction to the other conspirators in India or that they were in any manner concerned with them". Argument advanced on behalf of the CBI was that both Pradeep Chand and Ramesh Solomon were interested in the export of hashish from India and, therefore, they will be in the category of co-conspirators but Learned Trial Court rightly did not agree with this argument as there was absolutely no role assigned to them in the chain of actions as far as export of hashish from India is concerned.
24. After the aforesaid discussion, Trial Court concluded that "it is clear that the export of hashish from India was not the hand work of one individual. A whole gang was operating. The renting of a small portion of Rohit House for the office of a non-existent namely M/s New India Exports, the recovery of Invoice form of the said firm from the possession of Pradeep Malhotra, the storage of huge quantity of hashish in premises rented by Pradeep Malhotra and Mahesh Kumar Ashok Solomon Vs. CBI - CA No. 31/2012 21 ID No.02403R0002301999 Sharma, recovery of 86 bales of the cloths and packing material and wooden frames full of hashish from the premises of Mahesh Kumar Sharma and the presentation of export documents to Soni and by Ashok Das under the false name of Krishan Kumar constitute chain of act so complete within itself that it cannot be compatible with any hypothesis except that Ashok Das, Pradeep Malhotra, Mahesh K. Sharma and Noor Charan were involved in conspiracy to export hashish from India. Ashok Solomon took part in the conspiracy from his abode in USA. Therefore, Ashok Solomon, Ashok Das and Pradeep Malhotra are held guilty U/s 120-B IPC read with section 13 Dangerous Drugs Act for conspiracy to export hashish from India and since there was no incriminating evidence against accused Pradeep Chand and Ramesh Kumar Srivastava were acquitted."
25. Perusal of record would show that there were two Ashok Dass. One Ashok Dass was the co accused, who faced trial in this case and another Ashok Dass was resident of Canada, whose conversation with Ashok Soloman was allegedly taped by Canadian Police as noted in the charge sheet. It is submitted that Ashok Soloman admitted that Ashok Dass, was studying in United Christian School, Ludlo Castle Road, New Delhi but stated that he was not his classmate. He stated that Ashok Dass, who was his class mate, was his brother-in-law and not the co accused.
26. It was urged that conclusion drawn by the Learned Trial Court that Ashok Dass co accused was known to Ashok Solomon prior to the incident is an ill founded conclusion because examination of accused under section 313 Cr. P. C has to be considered as a whole in a continuous process. In response to question no 111 that "do you have anything else to say", accused explained and it could not be termed as improvement. In question no 1 under section 313 Cr.P.C., it was asked that Ashok Dass was his classmate and not that co accused Ashok Dass was his Ashok Solomon Vs. CBI - CA No. 31/2012 22 ID No.02403R0002301999 classmate. In many other question u/s 313 Cr. p. C as question no. 94, it was put that 'your co accused Ashok Dass" meaning thereby, the Learned Trial Court was aware that there were two Ashok Dass and therefore, the conclusion arrived is bad in law. Reliance by the Learned Trial Court on "Pershadi vs State of U.P7" was misplaced, while observing that the conduct of Ashok Solomon was inconsistent with his innocence. It was submitted that Hon'ble Apex Court in Pershadi's case had observed that there were five circumstances against the accused and therefore, an inference was drawn. In view of this, aforesaid judgment was not applicable to the factual matrix of the case.
27. Learned Trial Court rightly observed that for the offence of conspiracy there should be evidence of specific proof of the role played by each conspirator and something more was required. If the proposition that the Section 120-A of IPC is not satisfied merely by knowledge, mental attitude or even assent to somebody else for committing an offence, is accepted, the same would destroy the entire edifice of the aforesaid Section and would violate the meaning and import of the same. It is true as argued by Learned Special PP that it is not necessary that every one of the conspirators must have taken active part in the commission of each and every conspiratorial acts but, offence of criminal conspiracy consists in meeting of minds of two or more persons for agreeing to do or causing to be done an illegal act or an act by illegal means, and the performance of an act in terms thereof. It was urged by Learned Special PP that in the present case, appellant actively participated in the conspiracy and in the commission of the offence pursuant to the conspiracy and that it was proved beyond reasonable doubt that the appellant was involved in conspiracy to export hashish from India and import the same into USA. This Court is not inclined to agree with this contention of Learned prosecutor. Impugned Judgment outlines the scope of alleged conspiracy by observing that it was not a 7AIR 1975 SC 211 Ashok Solomon Vs. CBI - CA No. 31/2012 23 ID No.02403R0002301999 conspiracy which originated in India and culminated in USA with the seizure of hashish as Minneapolis. Prosecution split the conspiracy into two parts. One part was Indian, which it ended as soon as the contraband material left the shores of India and other part was American relating to the import of hashish into that country.
28. Trial Court's inference are far fetched and in any case, by no stretch of imagination, conclusions which have been drawn as regard appellant that his conduct was inconsistent with offence of conspiracy allegedly committed in India, could be deduced. Only inference, which could at best, be drawn was that appellant was convicted in US. Admittedly, no detailed trial of appellant took place in USA. No evidence or findings arrived by the Court on specific count of charges is proved or placed on record and the only inference, which could be drawn from the material on record was that co accused Ashok Dass was class-mate of appellant in school but the question to be addressed is, was that enough? In my considered view, this piece of evidence was not sufficient to indicate complicity of Ashok Soloman in the alleged conspiracy to commit any offence in India. To appreciate this, now I shall advert to the relevant position of law as regards conspiracy.
29. Section 120-A IPC defines criminal conspiracy as under:-
"Definition of criminal conspiracy - When two or more person agree to do, or cause to be done, (1) An illegal act, or (2) An act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof Explanation: - It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object."
30. Proof of a criminal conspiracy by direct evidence is not easy to get and probably for this reason Section 10 of the Indian Evidence Act was enacted. It reads Ashok Solomon Vs. CBI - CA No. 31/2012 24 ID No.02403R0002301999 as under:-
"Things said or done by conspirator in reference to common design:-Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it." Thus, substantive section of the IPC i.e. Section 120-A IPC and Section 10 of the Indian Evidence Act are legislative provisions applicable to conspiracy and its proof. The very agreement, concert or league is the ingredient of conspiracy, which requires an act (actus reuse) and an accompanying mental state (mens rea). From the definition of conspiracy in Section 120-A, agreement constitutes the act and the intention to achieve unlawful object constitutes mental state. All conspirators are liable for the crimes committed in furtherance of the conspiracy besides being liable for committing an offence of conspiracy itself. Pertaining to conspiracy, law punishes conduct that threats to produce the harm as well as the conduct that actually produces the harm. In this, lies the difference between the offence of conspiracy and general penal offences. In case of general offences, attempt to commit a crime merges when the crime is completed but in case of conspiracy, punishment is for both, the conspiracy and the completed crime. This distinctiveness of the offence of conspiracy makes all conspirators as agents of each other. Conspiracy, therefore, criminalises the agreement to commit a crime. Inherently, conspiracy is a clandestine activity. Its covenants are not formed openly. It has to be inferred from circumstantial evidence of co-operation. Conspiracies are hatched in the darkness of secrecy and direct evidence seldom forth comes and if Ashok Solomon Vs. CBI - CA No. 31/2012 25 ID No.02403R0002301999 the offence is to be proved in relation to the acts, deeds or things done by the co- conspirators, the question which arises for consideration in as to what is the nature of these acts, deeds or things. Merely moving around together or seen in each other's company is not sufficient, what more should be there from which it can be inferred that the conspirators were acting to achieve the desired offence in furtherance of a crime.
30. In "State of Maharashtra & Ors. v. Som Nath Thapa & Ors"8 it was observed that "for a person to conspire with another, he must have knowledge of what the co-conspirators were wanting to achieve and thereafter having the intent to further the illegal act takes recourse to a course of conduct to achieve the illegal end or facilitate its accomplishment." Except for extreme cases, intent could be inferred from knowledge for example whether a person was found in possession of an offending article, no legitimate use of which could be done by the offender. To illustrate, a person is found in possession of 100 Kg. of RDX, is proved to be visiting or visited by "A" against whom there is a charge of conspiring to blow up a public place. Here, the recovery of the offending article would be enough to infer a charge of conspiracy. However, such instances apart, it was held that law would require something more. This something more would be a step from knowledge to intent. This was to be evidenced from informed and interested cooperation, simulation and instigation. The following passage from People v. Lauria 251, California9 was cited:
"All articles of commerce may be put to illegal ends,.... but all do not have inherently the same susceptibility to harmful and illegal use....This different is important for two purposes. One is for making certain that the seller knows the buyer's intended illegal use. The other is to show that by the same he intends to further promote and cooperate in it. This intent, when given effect by overt act, is the gist of 8(1996) 4 SCC 659, 9APP 2 (d) 471 Ashok Solomon Vs. CBI - CA No. 31/2012 26 ID No.02403R0002301999 conspiracy. While it is not identical with mere knowledge that another proposes unlawful action, it is not unrelated to such knowledge........ The step from knowledge to intent and agreement may be taken. There is more than suspicion, more than knowledge, acquiescence, carelessness, indifferent, lack of concern. There is informed and interested cooperation, simulation, instigation."
31. To elucidate further, observations of Hon'ble Supreme Court in the decision reported as "Kehar Singh v State (Delhi Administration)10 may be noted "Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial. But the Court must enquire whether the two persons are independently pursuing the same and or they have come together to the pursuit of the unlawful object. The former does not render them conspirators, but the latter is. It is, however, essential that the offence of conspiracy requires some kind of physical manifestation of agreement. The express agreement, however, need not be proved. Nor actual meeting of two persons is necessary. Nor it is necessary to prove the actual words of communication." The evidence as to transmission of thoughts sharing the unlawful design may be sufficient.
32. The offence of conspiracy requires some physical manifestation of agreement. Law does not require that the act of agreement take any particular form and the fact of agreement may be communicated by words or conduct. It is unnecessary to prove that the parties "actually came together' and agreed in terms"
to pursue the unlawful object. A tacit understanding between conspirators as to what 10AIR 1988 SC 1883 Ashok Solomon Vs. CBI - CA No. 31/2012 27 ID No.02403R0002301999 should be done is sufficient. Relative acts or conduct of the parties must be conscientious and clear to mark their concurrence as to what should be done. The concurrence cannot be inferred by a group of irrelevant facts artfully arranged so as to give an appearance of coherence. Innocuous, innocent or inadvertent events and incidents cannot enter judicial verdict. Court has to be strictly on its guard.
33. Since more often than not, conspiracy would be proved on circumstantial evidence, four fundamental requirements may be re-emphasized:- I. circumstances from which the conclusion is drawn be fully established; II. All the facts should be consistent with the hypothesis of guilt; III. Circumstances should be of a conclusive nature and tendency; IV. Circumstances should, by a moral certainty, actually exclude every hypothesis but the one proposed to be proved.
34. Discussion pertaining to standard of proof required for proving the offence of conspiracy can be summarized by the observations of Supreme Court in the decision reported as "State (NCT of Delhi) v Navjot Sandhu11 that "A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused in the offence of criminal conspiracy."
35. It is significant to noted that in dealing with a criminal case where the prosecution relies upon the confession of one accused person against another accused person, the proper approach to adopt is to consider the other evidence against such an accused person and if the said evidence appears to be satisfactory and the Court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the Court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from other evidence is right. In Haricharan Kurmi Vs. State of Bihar12, it was observed that as a result of the provisions contained in Section 30, the confession has no doubt to be 11AIR 2005 SC 3820 12 AIR 1964 SC 1184 Ashok Solomon Vs. CBI - CA No. 31/2012 28 ID No.02403R0002301999 regarded as amounting to evidence in a general way, because whatever is considered by the Court is evidence; circumstances which are considered by the Court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of Section 30, the fact remains that it is not evidence as defined by Section 3 of the Evidence Act. The result, therefore, is that in dealing with a case against an accused person, the Court cannot start with the confession of co- accused persons; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on such other evidence. The same view has been expressed in Kasmira Singh Vs. State of MP13, where the decision of the Privy Council in Bhuboni Sahu Vs. The King14 has been cited with approval.
36. On appreciating material on record on the touchstone of aforesaid tests, this Court finds that prosecution has failed to establish that appellant/Ashok Soloman was the 'kingpin' of the conspiracy or had any 'nexus' with conspiracy of Indian part. It may be re-emphasised that according to the case of prosecution, one part of conspiracy was Indian which ended as soon as the contraband material left the shores of India and the other part was American relating to the import of hashish into that country. It was as regards, the second part, appellant/Ashok Soloman as well as other two co- accused Ramesh Solomon and Pradeep Chand (who were acquitted in the present case) had been convicted in USA.
37. It was alleged that appellant/Ashok Soloman had a telephonic conversation with one Ashok Dass (name sake of A-4 of Canada) on 20.05.1977 13 1952 SCR 526 14 AIR 1949 PC 257 Ashok Solomon Vs. CBI - CA No. 31/2012 29 ID No.02403R0002301999 and he discussed with him the arrest of A-4 in connection with consignment of 42 bales. It is was rightly observed in the impugned Judgment that prosecution will have to prove some covert or overt act done by the accused to achieve the object of export of hashish from India. This Court finds that inference of Learned Trial Court that they received the consignment in USA is no doubt evidence of their involvement in India too, is erroneous. Case of prosecution is that there are two portions of conspiracies and the offences are distinct and admittedly, appellant/Ashok Soloman had already been convicted for the distinct offence in USA. Then, anything which happened in USA, cannot be construed as evidence of their involvement in India too but something more was required to be proved by the prosecution. Now, as regards statement (Ex. PW4/E-1) and (Ex. PW4/6/E) of Ashok Dass recorded by J. M. Chaudhary Customs officer, Superintendent, Trial Court rightly observed that the said confessional statement of Ashok Dass can not be used as evidence withing the meaning of Section 3 of Evidence Act against appellant/Ashok Soloman. Then, it is an apparent error on the face of it to observe that it is certainly a matter which can be taken into consideration to seek assurance for the inference flowing from other evidence. On considering the evidence as a whole, Trial Court had to first decide whether the evidence other than the alleged disclosure statement of co-accused Ashok Dass is satisfactory and tends to prove the prosecution case. It is only if the said evidence is treated as sufficient to hold the charge proved against the appellant that an occasion could arise to seek for an assurance for the conclusion from the said disclosure statement.
38. Trial Court rightly found that the documents obtained from USA could not be taken into consideration as they were not proved in accordance with law. This Court finds that there is no satisfactory incriminating evidence on record against appellant/Ashok Soloman to infer his complicity in the conspiracy. Ashok Solomon Vs. CBI - CA No. 31/2012 30
ID No.02403R0002301999
39. In the impugned Judgment, Trial Court found that as per (Ex. PW34/B) would show that Ashok Dass had made an international call to USA on 03.05.1977 from telephone number 624428 installed on the first floor to his House No. A-277, Defence Colony was of no help as PW Manohar Lal, landlord of the premises deposed that telephone on the first floor remained under his lock and no question was put to him whether charges for the international call were paid by him or not. There is no evidence on record to establish that it was co-accused Ashok Dass, who made a telephonic call to appellant.
40. Appellant/Ashok Soloman had given answer to a question put to him u/s 313 Cr. P. C that Ashok Dass referred by him was not co accused but he was other person of the same name, who happened to be his brother-in-law. Observation made by Trial Court that this improvement made by Ashok Solomon on second thought, "would definitely help the prosecution", is difficult to understand and accept. This cannot lead to a far-fetched conclusion of complicity of appellant in criminal conspiracy pertaining to commission of offence in India. Merely, because appellant/Ashok Soloman and Ashok Dass were previously acquainted with each other or the fact that appellant and Ashok Dass were students of United Christian School, Ludlo Castle Road, Delhi or were class-mates, will not as such, lead to a conclusive inference that he was a party to conspiracy in this case.
41. Sh. Gupta, Learned Senior counsel submitted that Learned Trial Court considered statements of R.K Soni (PW-21) and Vipin Sharma (PW 43) wherein Vipin Sharma (PW 43) deposed that he did not receive any telephone call from Canada but R.K Soni (PW-21) had told him about receiving such call and from this deposition, Learned Trial Court could not have concluded that Ashok Ashok Solomon Vs. CBI - CA No. 31/2012 31 ID No.02403R0002301999 Solomon had taken an active interest in India. Statement of Vipin Sharma (PW-43) is hearsay evidence and R.K Soni did not state that he told this fact to Vipin Sharma. Learned Trial Court rightly discarded alleged confessional statement of Ashok Dass (Ex PW4/EX1) being inadmissible but erroneously considered the same for seeking assurance of an inference following from 'other evidence' and concluded that Ashok Solomon took part in conspiracy from U.S.A. Admittedly, there was no other incriminating evidence against Ashok Solomon and therefore, there was no occasion to draw an inference or seek assurance from an inadmissible disclosure statement of co accused Ashok Dass. It was argued that admittedly R.K. Soni (PW-21) could not identify Ashok Dass in the Court. In cross examination conducted on 30.09.1988, PW-21 deposed that he did not know any of accused present in the Court. Therefore, case of prosecution that Ashok Solomon used to send consignment through him, is not established. It is urged that it is evident from his evidence, that R. K. Soni (PW-21) and Vipin Sharma (PW-43) were tortured at the time, their statements was recorded by custom officials. Vipin (PW-43) also deposed that he never knew Ashok Solomon.
42. The question posed by Trial Court was whether all of them were privy to the conspiracy to export hashish from India. It was correctly noted that "the law require specific proof against each of the conspirators participating in the deed to do a particular criminal thing." The plea of the prosecution clearly has been that the conspiracy to import hashish into USA was distinct from conspiracy to make export from India. Conviction of appellant in a USA Court will not automatically make him a conspirator in India also. Prosecution was required to prove some covert or overt act done by appellant to achieve the object of export of hashish from India, which it has failed.
43. Learned Prosecutor argued that statements of RK Soni and Vipin Ashok Solomon Vs. CBI - CA No. 31/2012 32 ID No.02403R0002301999 Sharma that a phone call was received on 21.05.1977 showed involvement and complicity of the appellant in the illegal transaction. It is submitted by the Learned Public Prosecutor that the probative value of the statement of Ashok Das recorded under section 108 of the Customs Act could not be doubted and the incuplatory statement made therein was rightly taken into consideration by the Learned Trial Court in coming to the conclusions that the appellant herein was also involved in the conspiracy to export hashish from India to USA. Learned Special PP argued that statement of Ashok Das assumed significance, in view of the fact that he had not only implicated the appellant herein but has also made incuplatory statements against himself which certainly lends credence to his statement were admissible in evidence. It is submitted that the Customs Department got into action on receipt of information from the authorities in the USA. In these circumstances, it could not be contended that the statement recorded by the Customs Officer of u/s 108 of the Customs Act was without jurisdiction.
44. In his statement, RK Soni (PW21) has deposed that Ashok Soloman @ Kake had booked several consignments through him. Since, R.K. Soni had not denied having made a statement to the Police that Ashok Soloman had called him on phone on 21.5.1977 to inquire about the arrest of Ashok Das and that Vipin Sharma made a statement in the Court that a telephone call was received on the date in question. From this, it was concluded that it is evident from the above that Ashok Soloman was taking active interest the matter in India. Corroboration was sought from the confessional statement (Ex PW4/B1) made by Ashok Dass, which implicated the appellant herein. On the basis of this, Learned Trial Court came to the conclusion that the involvement of the appellant in the conspiracy was writ large on record. It is significant to note that R. K. Soni (PW-21) clearing house agent in his deposition stated that he could not identify Ashok Dass and he had not come to Ashok Solomon Vs. CBI - CA No. 31/2012 33 ID No.02403R0002301999 know the name of other person connected with the consignment in the custom house. He did not state that he had received any telephonic call making inquiry of this case. He was cross examined by Ld. Special Prosecutor. In cross examination, PW-21 deposed that he did not remember if on 21.05.1977 at 04:30pm, he received a call from telephone number 45556 installed in his office was received from Ashok Soloman from USA, who enquired whether Krishan @ Ashok Dass was arrested. Vipin Sharma (PW-43) other clearing house agent deposed that he did not know Ashok Soloman. He had not received any call from Canada inquiring about his address. He deposed that Soni (PW-21) did not receive any telephonic call in his presence. PW-43 deposed that he told him that he had received a telephonic call but did not remember that Soni had told him about that telephonic call. Learned Trial Court observed that the statement made to police cannot be used as evidence but the statement made by Vipin Sharma (PW43) on this point in Court will certainly show that a telephone call was received on the date in question. In his deposition, Vipin Sharma (PW-43) only stated that he did not receive any telephone call from Canada but Soni told him about receiving of a telephone call from Cananda, enquiring about his address. This evidence of Vipin Sharma (PW-43) is clearly hearsay evidence. Both these witnesses had not identified co-accused Ashok Dass. They have not stated that what exactly, was the conversation which allegedly took place in call made to him. This evidence regarding telephone call is neither satisfactory nor convincing and in any case, does not indicates complicity of appellant with the offence of alleged conspiracy.
45. A vague and bald statement regarding telephone call made from Canada on the intervening night of 20/21.05.1970 cannot be sufficient to establish link of accused with the conspiracy. Admittedly, no recovery of hashish has been effected from or at the instance of Ashok Soloman or from Ashok Soloman in India. Ashok Solomon Vs. CBI - CA No. 31/2012 34
ID No.02403R0002301999 He was indisputably not present in India at the relevant time at the time or before the alleged offence, which took place in India. There is not an iota of evidence on record to infer on even indicate that appellant had given any money or Rs. Five lacs as alleged, to Ashok Dass for purchase and export of hashish. Thus, prosecution has failed to establish nexus of appellant Ashok Soloman with alleged conspiracy in this case. To conclude, on overall appreciation of evidence on record, this Court finds that prosecution has failed to prove charges against appellant-Ashok Soloman beyond the shadow of reasonable doubt. Therefore, impugned judgment dated 19.02.1992 qua the appellant deserves to be set-aside. In the result, appellant Ashok Soloman is hereby acquitted from the charges. His bail bond is cancelled and surety is discharged.
48. TCR be sent back alongwith a copy of this order.
49. Appeal file be consigned to Record Room.
announced in the
open Court
on 28th November, 2013 (Vinay Kumar Khanna)
ASJ-04 & Spl. Judge (NDPS) South East,
South-East, Saket Court/New Delhi
Ashok Solomon Vs. CBI - CA No. 31/2012 35