Judgement in Human-Trafficking Offences Allegedly commited by Army Personnel

IN THE COURT OF MANOJ JAIN: SPECIAL JUDGE (PC ACT) (CBI)

SOUTH DISTRICT: SAKET DISTRICT COURTSNEW DELHI

CC No. 46/2011

RC SI82007E0006-EOU-IVRC SI82008E0001-EOU-IVRC SI82008E0002-EOU-IVRC SI82008E0003-EOU-IVRC SI82008E0004-EOU-IVRC SI82008E0005-EOU-IV

U/s 120B r/w 419/420/467/468/471 of IPC & Sec. 12 of Passports Act,& Sec. 13 (2) r/w 13 (1) (d) of PC Act.

CBI Vs. 1 M. Suresh Babu,Son of Sh.M. Sundara Rao,

Resident of Qtrs. No.74/4,

Ichamati Lines, Rajputana Rifles

Regimental Centre, Delhi Cantonment Area, New

Delhi,Permanent Address: S-21/549,Keshar Nagar, near Nerad

Math, Secundarabad, Andhra

Pradesh.

2 Nagrajan Israel Raja @ Israel Rajah @ Raja @ Anil Kumar

Nagrajan @ Joel Brother,Son of Sh. Arasan, Resident of 51, Moti Bagh near

CBI Vs M. Suresh Babu etc 46/2011 1

Nanakpura Gurudwara.

3 David Abraham Johnson, Son of Sh. Perumal, Resident of G-124, JJ Colony, Wazirpur, New Delhi.

4 Navneet Singh, Son of Sh. Kulwant Singh, Resident of Mohalla Gopal Nagar, Village Jandiala Guru, Amritsar, Punjab.

5 Rajinder Singh, Son of Sh. Kashmir Singh, Resident of Dhirkot PO GarhiMandi, PS Jandialaguru, Amritsar, Punjab.

6 Gurdev Singh, Son of late Sh. Joginder Singh, Resident of Village Naushera,PO Pannua, PS Sarhali, TaranTaaran, Amritsar, Punjab.

7 Varinder Singh,Son of Sh. Nirmal Singh,Resident of Village & PO

Patnoora, Lubana, PSA Bhogpur, Distt.

Jalandhar, Punjab.

8 Gurjant Singh, Son of Sh. Balbir Singh, Resident of Village Naushera PO Pannua PS Sarhali,Taran Taaran, Amritsar, Punjab.


Date of Institution : 12.05.2008Date of framing of charge :09.09.2009Date on which case was received on Transfer by this Court : 15.11.2011Date of conclusion of arguments :02.07.2012Date of Judgment : 13.07.2012

Memo of Appearance

Sh. Jagbir Singh, ld. PP for CBI. Sh. Rakesh Malhotra ld. counsel for A1Sh. Paramjeet Singh, ld. counsel for A5, A6 & A8Sh. Kulwinder Singh, ld. counsel for A4 & A7 Sh. S.N.Pandey, ld. counsel for A2 & A3

JUDGMENT

Kabootarbazi denotes going abroad through illicit means. It is

an act involving human-trafficking. The term Kabootarbazi is

derived from the distinctive attribute of kabootar (pigeon) to fly

and land silently and surreptitiously. Rural youth, from North

India in particular, is fanatically crazy about settling abroad.

Lure of west and temptation of hefty employment package

compel them to gag the mouths of agents with money.

Sometimes they raise money by selling off whatever they

possess and sometimes even by taking loans from friends and

relatives knowing fully well that it might be well nigh

impossible to repay such debt. It becomes rampant whenever

any group takes to skies for participation in any event. It can


be a sporting event. It can be a musical group as well. By

falsely showing any such person to be the part of any such

group, persons are sent abroad on false documents and

naturally, they never return to their Motherland. Indian Army is

known for its dedication in security matters. Its band has also

created a niche for itself in the field of Music. Who can stop

thinking about the melodious Beating Retreat? It is, in fact, a

treat to Eyes and Ears. Military Bands, Pipes and Drums Bands,

Buglers and Trumpeters from various Army Regiments perform

during the ceremony. Indian Army Band is world renowned but

it was never thought, even in the wildest imagination, that

human trafficking would take place for an event in which Indian

Army Band was supposed to perform in Berlin in 2008.

PROSECUTION VERSION

1.0 On 01.11.2007, five accused persons i.e. Nagarajan Israel

Raja (hereinafter referred to as A2), Rajender Singh (hereinafter

referred to as A5), Gurdev Singh (hereinafter referred to as A6),

Varinder Singh (hereinafter referred to as A7) and Gurjant Singh

(hereinafter referred to as A8) reached I.G.I. Airport, New Delhi. They

were holding official passports and E-Tickets and wanted to go to

Frankfurt by Air India Flight No. AI-127. Officials at Airport suspected

their credentials as they all were supposed to be army personnel

but spot inquiry revealed that they were neither army officials nor

entitled to any official passport.

1.1 Except for the photographs, all the particulars mentioned

in such passports were found to be untrue.


1.2 A7 Varinder Singh was found in possession of one official

passport which was in the name of Jagtar Singh and he revealed that

such journey had been arranged through agents and a meeting was

fixed with A2 at airport and at airport, A2 handed over aforesaid

official passport to him.

1.3 A8 Gurjant Singh was found in possession of official

passport which was in the name of one Sher Singh and he revealed

that he had acquired such official passport from one agent namely

Navneet Singh (accused herein and he would be referred to as A4)

who in turn had referred him to one other agent i. e. A2 and

thereafter A2 had given him that official passport.

1.4 Similar story was narrated by A6 who was found in

possession of passport in the name of Jasbir Singh and he also

indicted A4 Navneet Singh and A2 Nagarajan as agents.

1.5 A5 Rajender Singh was also found in possession of one

official passport in the name of Bikram Singh and he also blamed his

co accused A2 Nagarajan and A4 Navneet Singh.

1.6 It would be worthwhile to mention that A2 Nagarajan was

also apprehended with forged official passport. Such passport was in

the name of one Anil Kumar and on interrogation, it was revealed that

he was a carrier as well as agent and he was taking said four

persons i. e. A5 Rajender Singh, A6 Gurdev Singh, A7 Varinder Singh

and A8 Gurjant Singh to Germany on forged official passports and he


had obtained such official passports from M. Suresh Babu (accused

herein and he would be referred to as A1) by paying him Rs.2.50

lacs.

1.7 A1 Suresh Babu was, in fact, an army personnel but he

had already left for Germany a day before on official passport on

official assignment. A2 Nagarajan also revealed that he used to

meet A1 M. Suresh Babu as well as David Abraham Johnson

(accused herein and he would be referred to as A3) and later, A3

introduced him to A4 Navneet Singh who had given him Rs.11.50

lacs for making arrangement for sending three persons to Germany.

1.8 Accordingly, five separate FIRs were registered against

said five accused persons by PS I.G.I. Airport.

1.9 Ministry of Defence informed CBI that in the month of

October, 2007, Indian Army Band had to proceed to Germany for

participation in 13th Berlin Military Band Festival. Such team consisted

of 42 persons including 2 officers. 10 more persons were kept as

‘reserved’ as stand by. However, official passports were got arranged

for all of them including reserved officials for participation in said

festival. It was also informed that preliminary investigation

conducted by army revealed that Lance Naik Suresh Babu i. e. A1

had abused his official position and conspired with some public

persons and private persons and fraudulently obtained official

passports and diverted the same to private persons against

consideration. It was also suspected that A1 was also responsible

for facilitating issuance of diplomatic passport to one Brigadier H. P.


S. Bedi and also obtained official passport for one Smt. Harleen

Chadha whereas they both were not entitled to such passports

and when the house of A1 was raided by army authorities, they

recovered 44 passports and Rs.1.20 lacs in cash along with DO

letter Pads of Senior Officers of Army from his house.

1.10 CBI was accordingly requested to register FIR in order to

unearth nexus between army personnel and criminals dealing with

illegal immigration.

1.11 On the basis of such complaint dated 28.11.2007

received from Ministry of Defence, Govt. of India, CBI registered case

no. RC SI82007E0006-EOU-IV.

1.12 Since all the previous cases registered at I. G. I. Airport

also fell within the scope of investigation of said RC SI82007E0006-

EOU-IV registered by CBI, the other five cases were also transferred

to CBI from Delhi Police and accordingly five corresponding RCs were

also registered.

1.13 Investigation revealed that A1 was posted as Lance Naik

in the Directorate of Ceremonial and Welfare-I, Army Headquarters,

South Block, New Delhi. He was entrusted with responsibility to deal

with preparation of official passports in respect of those army officials

who were scheduled to participate in said music festival. This was

as per the previous practice as A1 knew about the procedure and had

got prepared official passports for such like music festivals on

previous occasions as well. He hatched conspiracy with all his other


co accused. A1 filled up application forms in respect of 51 army

officials and affixed photographs of some private persons on

application forms instead of actually selected army officials and kept

as reserved. He also forged signatures of Colonel Satender Singh,

Director of Ceremonial and Welfare-I in all the 51 applications and

took those applications to the passport office situated at Patiala

House, New Delhi. Officials of MEA had also blind faith in him and

blank passports were made available to him and taking undue

advantage of such fact, he pasted photographs of private persons,

including of A2, A5, A6, A7 and A8 and the concerned MEA official

signed the passports believing all such passports to be genuine

passports. A1 then personally received all such 51 passports and

then in terms of conspiracy, said five fake official passports were

handed over to A2 Nagarajan Israel Raja.

1.14 E-tickets were purchased by A2 Nagarajan. One room in

Hotel Airport Inn, Mahipal Pur was booked by A3 David Johnson. A4

also joined hands with them and came there with A5, A6 and A8. As

far as A7 Varinder Singh is concerned, he reached directly to airport

on 01.11.2007 where he met all his co accused except A1 who had

already flown to Germany a day before.

1.15 Thus as per the investigation, all said five accused

persons i. e. A2 Nagarajan Israel Raja, A5 Rajender Singh, A6

Gurdev Singh, A7 Varinder Singh and A8 Gurjant Singh were,

deceitfully, intentionally and by corrupt means, trying to leave India

in terms of conspiracy with others. They were neither army officials

nor they could have ever applied for any official passport. A4


Navneet Singh acted as agent and procured passengers i. e. A5

Rajender Singh, A6 Gurdev Singh and A8 Gurjant Singh. It was also

found that the sum of Rs.4.90 lacs were transferred by A4 Navneet

Singh to the bank account of his co accused A3 David Johnson in lieu

of obtaining such forged passports.

CHARGESHEET AND CHARGES

2.0 After concluding investigation, a consolidated charge

sheet with respect to all the aforesaid six RCs was filed indicting all

the aforesaid eight accused persons. It was also simultaneously

claimed that investigation on certain points was still pending and

permission was sought to further investigate the matter u/s 173 (8)

Cr. PC.

2.1 It was also mentioned in the chargesheet that no

sufficient evidence could be found against Brigadier H. P. S. Bedi

and Smt. Harleen Chadha. They were thus not sent up to face trial.

2.2 Such charge sheet was filed in the court on 12.05.2008

and vide order dated 20.4.2009 cognizance was taken.

2.3 It will also be pertinent to mention that two

supplementary charge sheets were also filed by CBI.

2.4 One such supplementary charge sheet dated


30.10.2008 is limited in nature as by virtue of the same, sanction

orders along with report of GEQD were sought to be placed on

record.

2.5 Thereafter, one more supplementary charge sheet was

filed in the court on 10.8.2010 which primarily pertained to

investigation related to recovery of 44 passports from the house of

A1 and also regarding 5 missing official passports of one previous

Chile visit of army band. As regards 44 passports, CBI concluded

that the same had been merely kept by A1 at his house for future use

and no criminality could be attributed from the factum of mere

recovery of such passports. Even as regards second aspect, CBI

concluded that there was not sufficient evidence except the

disclosure made by one suspect against the other.

2.6 Vide order dated 31.8.2009, charges were ordered to be

framed.

2.7 A1 Accused M. Suresh Babu was charged for offences u/s

419, 420, 467, 468, 471 R/w 465 IPC and u/s 13 (2) R/w 13 (1) (d)

Prevention of Corruption Act and u/s 12 of Passports Act. Remaining

accused A2, A3, A5, A6, A7 and A8 were also separately charged

u/s 419, 420, 471 R/w 465 IPC and u/s 12 Passports Act.

2.8 Simultaneously, all the eight accused persons were also

charged u/s 120 B R/w 419, 420, 467, 468, 471 R/w 465 IPC, u/s 12

of Passports Act and u/s 13 (2) R/w 13 (1) (d) PC Act. All the accused

pleaded not guilty and claimed trial.


WITNESSES FOR PROSECUTION

3.0 Prosecution was directed to adduce evidence and has

examined 43 witnesses. Witnesses can be classified as under:-

Witnesses related to IGI Airport.

(i) PW6 Pawan Kumar, Counter Supervisor at Air India, IGI

Airport, Terminal-II, New Delhi.

(ii) PW7 Harish Kumar, Customer Agent at IGI Airport.

(iii) PW17 Amit Kumar, Customer Agent at IGI Airport.

(iv) PW32 S. T. Norbula, Assistant General Manager at IGI

Airport, Air India Terminal, New Delhi.

(v) PW 15 Bhanu Prakash Joshi, Boarding Officer at IGI

Airport.

Witness from Ministry of External Affairs

(i) PW18 Smt. Suresh Rani Sharma, Assistant in the PV-II

Section, Passport Office, MEA, Patiala House, New Delhi.

(ii) PW19 Surjit Som, Section Officer in PV-II Section,

Passport Office, MEA, Patiala House, New Delhi.

(iii) PW39 Pawan Kumar, Under Secretary in the PV-II Section,

Passport Office, MEA, Patiala House, New Delhi.

Witnesses from Hotel Airport Inn.

(i) PW9 Ram Prakash Chauhan, Manager in Hotel Airport Inn

at Mahipal Pur on 31.10.2007.

(ii) PW10 Deepak Singh, Manager in Hotel Airport Inn


Witnesses related to issuance of E-tickets.

(i) PW12 Yogesh Kumar Bhardwaj, Managing Director of M/s

Sunrise Airways Pvt. Ltd.

(ii) PW13 Neeraj Handa, agent for M/s Sunrise Airways Pvt.

Ltd. and E-tickets in question were booked through him.

Important Army Officials.

(i) PW11 Brig. H. P. S. Bedi. He was posted as Dy. Director

General (Ceremonial and Welfare Department) Army.

Headquarters, New Delhi.

(ii) PW14 Lt. Col. K. S. Chadha. He was posted at CW-2

Directorate, AG Branch.

(iii) PW16 Swapan Kumar. PA to Brig. H.P.S. Bedi

(iv) PW21 Col. K. S. Ram Mohan. He was posted at Army

Headquarters as Director, CW-II.

(v) PW33 Lt. Col. Adesh Pal Singh Randhawa. He was posted

as Joint Director at Army Headquarter, R&W Section, New

Delhi.

(vi) PW 20 Vijay Mohan for proving element of conspiracy

Witnesses who were impersonated and in whose name, five

of the accused persons were attempting to travel abroad by

using forged passports.

(i) PW1 Vikram Singh.

(ii) PW2 Anil Kumar.

(iii) PW3 Jasbir Singh.

(iv) PW4 Jagtar Singh.


(v) PW5 Sher Singh.

Other army officials.

(i) PW22 Ashok Kumar Barua.

(ii) PW23 Tapan Kumar Maity.

(iii) PW24 Gagan Lama.

(iv) PW25 Hav. Amarjeet Singh.

(v) PW27 Rajender Singh.

(vi) PW28 Devinder Singh.

(vii) PW29 Ranjeet Kumar.

(viii) PW34 Girish Kumar U.

(ix) PW37 Aji Kumar.

Witness to seizure of passports from the house of A1 M.

Suresh Babu.

(i) PW26 Subedar Mohammad Aslam Ansari.

Bank witness

(i) PW36 Vikas Joshi.

Investigating officers, sanctioning authorities and

G.E.Q.D.

(i) PW40 Nripendra Mohan Prasad Sinha, Addl. SP.

(ii) PW41 Inspector Anand Sarup.

(iii) PW42 Assistant GEQD R. S. Rana.

(iv) PW43 Brigadier S. D. Nair competent authority to grant

sanction with respect to prosecution under PC Act qua A1

(v) PW38 R. Swaminathan, competent authority to grant

sanction with respect to prosecution under Passports Act


qua all accused.

Public witnesses

(i) PW30 Sukhdev Singh.

(ii) PW31 Roshan Lal.

(iii) PW35 Surjeet Singh.

DEFENCE VERSION AND WITNESSES FOR DEFENCE

4.0 All the accused in their respective statements u/s 313 Cr.

PC pleaded innocence.

4.1 As far as A5, A6 and A8 are concerned, they have taken

similar stand. They all have denied being part of any criminal

conspiracy. According to them, they were to go to Germany on work

permit and their co-accused Navneet Singh i. e. A4 had assured

about obtaining such work permit. They claimed that they had not

purchased any E-ticket and rather when they reached Airport on

01.11.2007, they all were detained.

4.2 They all, in no uncertain terms, implicated their co

accused A4 Navneet Singh by claiming that they all had been misled

by him that they would be sent abroad on genuine work permit. They

all denied knowingly possessing having any forged passport or user

thereof. They claimed that they didn’t know anything about their

other co-accused persons.

4.3 As far as A7 Varinder Singh is concerned, he too has


claimed that he was not holding any official passport and when

inquiries were made from him, he also told at Airport that he was not

army official. According to him, he had not purchased any ticket and

did not secure any boarding pass either. He claimed that he had

gone to the Airport as per the instructions of one Lakhvinder who had

assured that all travelling documents were legal. He also claimed

that all such passports were in possession of A2 Nagarajan Israel

Raja.

4.4 A4 Navneet Singh has pleaded his complete ignorance

about the present case. According to him, he was called in CBI office

where he had seen one Sandeep Singh. He also claimed that he had

been falsely implicated in the present matter.

4.5 A2 Nagarajan Israel Raja has also pleaded his innocence

and has claimed that he has been falsely implicated. He admitted

that he had gone to Airport that day but according to him, Surjeet

had asked him to reach Airport on 01.11.2007. His four other co-

accused A5 to A8 were already present there and then he was given

one passport by Surjeet. When he saw that passport, he noticed

that it was in the name of Anil Kumar and he confronted Surjeet on

said issue on which Surjeet claimed that nothing would happen as it

was containing his photograph only. He pleaded that he did not know

that such passport was official passport meant for army official and

claimed that it was Surjeet who was paid Rs.50,000/- and it was

Surjeet who had given him that passport. He also denied purchasing

any E-ticket.


4.6 A3 David Abraham Johnson has also claimed that he has

been falsely implicated. He claimed that one Mr. Sandeep was his

boss and he booked one room for him and Mr. Sandeep gave him call

that there was some problem and asked him to go underground. He

also claimed that whatever amount was deposited in his bank had

been deposited by Mr. Sandeep and he did not know any of his co

accused.

4.7 A1 M. Suresh Babu admitted that he had visited Germany

to participate in International Music Festival at Berlin. He, however,

claimed that he was musician and was not working in the office of

CW-1 but was in Rajputana Riffles. He denied that he had filled or

signed any of the application forms. He denied that he had taken any

such application form to the passport office or signed any receipt

from the passport office. He also denied that he had got any

passport prepared for Ms. Harleen Chadha or handed over to her.

When it was asked as to why the present case had been made

against him. He answered as under:

"I do not know as to why this case has been made against me.

I had gone to Germany as part of the music team. At the time

of return, I was with Subedar Gurdev Singh, Lt. Col. Adesh Pal

Singh Randhawa, Havaldar/Clerk Raeji. I was told to have an

eye upon Subedar Gurdev Singh by Col. Randhawa. We

returned to India. Same evening, I do not know what

transpired but I, along with Subedar Gurdev Singh and

Havaldar Raeji were put in quarter guard i.e. custody. We all

were kept separately in custody for one week. Then some

inquiry was initiated and I found that it was directed against

me only. I, however, always claimed that I did not know


anything about the present matter and was not involved in

anything. Initially, I was told that I would be let off in one or

two week but matter went on for quite some time and even I

was not allowed to meet my family. After one year or so my

mother died and then I virtually started quarrelling as to why I

was being detained for so long then I was taken to CBI office

and falsely implicated in the present matter.

I was only good musician and I did not know anything about the

procedure related to passport etc. I feel that I have been

falsely implicated in the present matter by Brig. H.P.S. Bedi,

Col. Satinder Singh and Lt. Col. Chadha. I never was given any

application form for taking the same for passport office. I

never filled any such application form. I never collected any

passport. There was rather a separate team in the Army for

such purpose and I was not part of any such exercise."

4.8 All accused except A1 desired to lead evidence in

defence. DW1 and DW2 entered into witness box on behalf of A5, A6

and A8. No other witness was examined by any of the accused.

CONTENTIONS OF STATE

5.0 Ld. PP has contended that prosecution has been able to

prove its case to the hilt.

5.1 He has contended that there is evident and discernible

conspiracy amongst the accused persons and that it is very much

palpable that all the accused were in league with one another.

Army officials as well as the officials of MEA were having blind faith in


A1 who took unjustifiable advantage of such trust reposed in him and

dared to forge signatures of Col. Satender Singh. He obtained blank

official passports from MEA and filled those and the 10 passports,

which were meant for reserved band members and which were not

ultimately going to be utilized at all, were misused by him. Five such

passports were found in possession of A2, A5, A6, A7 and A8 when

they were caught at IGI Airport on 01.11.2007 and remaining were

recovered from his house later on. He has also argued that A1 came

into contact of A2, A3 and A4. A4 arranged A5, A6 and A8 and

obtained money from them and also transferred a sum of Rs.4.90 lacs

to the bank account of his co accused A3. It has also been argued

that the sketchy cross examination of some of the important

witnesses also indicate that accused never disputed the authenticity

of the case of prosecution. He has also contended that A5, A6 and

A8 have categorically indicted A4 Navneet Singh as the person who

had duped them which fact also lends reassurance to the correctness

of the prosecution’s version.

DEFENCE CONTENTIONS

6.0 All the aforesaid contentions of the prosecution have

been refuted by the defence.

6.1 Sh. Rakesh Malhotra, counsel for A1 M. Suresh Babu, has

contended that A1 has been made a scapegoat. According to him,

neither A1 had filled up any form nor had he forged signatures of


anyone.

6.2 According to him A1 was only a musician in Rajasthan

Riffles and was not in the office of CW-1. His name was admittedly in

reserved list earlier but he was asked to report and to participate in

the Music Festival and had gone to Germany but he had never filled

any application form for preparation of official passport of anyone

and never forged signatures of any one. According to him, some

blank applications for passports were given to him by some of the

applicants and these application forms were given by him to Subedar

Ashok Kumar Barua for necessary processing and A1 did not do

anything further at all. After he returned from Germany, he was

detained by army officers and then after one year he was handed

over to CBI. He also claimed that senior army officers were let off and

he, being a petty official, has been implicated.

6.3 Sh. Kulvinder Singh had defended A4 and A7. As regards

A7, he has contended that there is nothing on record to show that he

had ever cheated anyone or even attempted to cheat anyone. He

does not dispute that A7 was present at IGI Airport that day but his

mere presence cannot invite inference to the effect that he was part

of any conspiracy or that he had cheated anyone. According to him,

A7 had gone to IGI Airport as per instructions of Lakhvinder, the

agent and he was never told that he was supposed to travel on any

forged passport. It has also been argued that there is nothing to

show that A7 had impersonated anyone or was holding any forged

passport or that attempted to use such passport. According to Sh.

Kulvinder Singh, A7 had not even arranged any E-ticket and when he


reached at the airport, he was immediately apprehended. He has also

challenged the investigation which according to him is biased and

tainted.

6.4 As regards A4, it has been argued that there is no

material whatsoever to infer that he was part of any conspiracy. He

has also argued that prosecution has miserably failed to show that

A4 had transferred any money to the account of A3. It has also been

argued that neither the concerned photographer has been examined

nor the witness from concerned hotel has indicted A4 and therefore,

A4 cannot be hauled up merely on surmises and conjectures or on

the basis of statements of co accused. According to him, A5, A6 &

A8 have indicted him due to some other issue and A4 had never

taken any money from them.

6.5 Sh. S. N. Pandey has defended A2 and A3.

6.6 As regards A2, it has been argued that there is no fact

suggesting his involvement with any other co-accused. Photo-studio

official has not been examined and hostile testimony of PW 20 clearly

demolishes theory of conspiracy as PW 20 has failed to say anything

against A2. According to him, his presence at Hotel a night before

does not stand proved and CBI has also failed to establish that E-

Tickets were arranged by him. He has also expressed astonishment

over bias investigation and unwarranted interference in investigation

by Director, CBI and according to him Surjeet and Neeraj Handa

should have been also made accused besides some senior Army

officials. He has stressed that A2 had no role in preparation of any


forged passport.

6.7 As regards A3, he admits that he had an account with

ICICI branch but deposit in such account had not been made by any

co-accused. Rather, it was made by one Sandeep Singh and

Karamjeet Singh and, these two persons were deliberately left out

from the scope and ambit of investigation. According to him,

conspiracy cannot be presumed whimsically merely because one

room was booked by him at Hotel Airport Inn when CBI has failed to

prove presence of any other accused at such room.

6.8 Sh. Paramjeet Singh has also tried to shield A5, A6 & A8.

He has contended that contradictory versions of Airport officials have

confused the scenario and it cannot be said that they had any

occasion to use passport. He has argued that rather A2 and A4 had

brought all three of them to Airport from Hotel and they were given

passports only when they had taken position in the queue and they

never had any opportunity to see whether the travel documents were

genuine or not. He has contended that all three of them had no

knowledge as to what had been already done by their co-accused.

According to him, they all three are rather victims and should not

have been made accused. He has also claimed that Sh. Kulwinder

Singh. Ld counsel for A4 and A7 was possessing the counterfoils of

deposit slips of amount deposited in the account of A3 by A4. Such

slips were seized during investigation and Sh. Kulwinder Singh must

have obtained those from A4 and then the same must have been

handed over to CBI and this fact, by itself, indicates that A4 had

cheated these three accused and obtained money from them by


deceit and then transferred such money to the account of A3. When

they came at Delhi, they were given forged passports and they lost

their money as well as prestige as they had to remain behind the

bars.

EVALUATION OF EVIDENCE

7.0 I have given my thoughtful consideration to the rival

contentions and vigilantly perused and scanned the entire material

available on record.

7.1 Five alleged impersonators are A2 Nagarajan Israel Raja,

A5 Rajinder Singh, A6 Gurdev Singh, A7 Varinder Singh and A8

Gurjant Singh.

7.2 As per CBI, these five accused persons were trying to flee

India by using forged passports. The following chart would show the

relevant details:-

Sl. No.

Name of accused Passport no Exihibit No. Official impersonated

Serial no. of such official in overall List/ serial no. in Reserved list

1 A2 Nagarajan 01173171 (D140)

Ex PW2/C PW2Anil Kumar

46(4)

2 A5 Rajender Singh

01173204 (D139)

Ex PW1/B PW1Bikram Singh

51(9)

3 A6 Gurdev Singh

01173202 (D138)

Ex PW3/B PW3 Jasvir Singh

47(5)

4 A7 Varinder Singh

01173207 (D142)

Ex PW4/B PW4 Jagtar Singh

50(8)

5 A8 Gurjant Singh

01173203 (D141)

Ex PW5/B PW5Sher Singh

48(6)


7.3 Out of said five accused persons, it will be appropriate to

deal with A5 Rajender Singh, A6 Gurdev Singh, A7 Varinder Singh

and A8 Gurjant Singh, at the moment. Role of A2 Nagarajan Israel

Raja is somewhat aggravated as he is also alleged to be agent and

material co-conspirator.

7.4 Qua A5, A6, A7 and A8, let me weigh up following

aspects:-

i) Whether they had conspired with their other co-accused

persons or not?

ii) Whether they had submitted incorrect particulars and

had signed application forms for obtaining fake

passports?

iii) Whether they had used such official passports and

whether they had cheated MEA officials, Airport officials

and immigration authorities?

7.5 There does not seem to be any dispute that for the

purpose of participation in said Music Festival to be held in Germany,

a list was prepared and was sent to MEA and also to the Embassy of

Federal Republic of Germany. Such list consisted of 52 persons.

First 42 officials were in the main list and remaining 10 officials were

in the reserved list. These names can be ascertained from Ex.PW39/A

as well as from Ex.PW21/A.


7.6 By reserved officials, it means that these were to be used

as standby or in case of emergency if any of the member in the

main list was unavailable for one reason or the other. Reserved

Musicians were as under:

1) NK Devender Singh

2) NK Anil Pardhe

3) NK T. K. Maithy

4) NK Anil Kumar

5) LNK Jasvir Singh

6) LNK Sher Singh

7) LNK M. Suresh Babu

8) Sep. Jagtar Singh

9) Sep. Bikram Singh

10) GDR Praveen Kumar

7.7 It will be also important to mention here that one official

i. e. Lance Naik Hawaldar Amarjit Singh, whose name was in Main list,

did not go Germany and in his place A1 M Suresh Babu, whose name

was in Reserved List, visited Germany.

7.8 As per such list, it is very much apparent that names of

Jasvir Singh, Sher Singh, Jagtar Singh and Bikram Singh figure in

reserved list. Of course, name of Anil Kumar is also in Reserved List.

7.9 Let me now see the passport application forms pertaining

to said four accused persons. These are as under:

Sr. No. Name of accused Application form1 A5 Rajinder (D51) Ex.PW1/A


Singh2 A6 Gurdev Singh (D49) Ex.PW3/A3 A7 Varinder

Singh

(D48) Ex.PW4/A

4 A8 Gurjant Singh (D50) Ex.PW5/A

7.10 PW1 Bikram Singh has deposed that he was posted in

Sikh Regiment and was attached with army band and Rajasthan

Riffles in the year 2007. He also gave particulars of his family

members and his address. He deposed that he was never

nominated by the army music band for participation in Music Festival

in Germany and he had never applied for the passport either. He was

shown application form Ex.PW1/A. He claimed that said form was

neither containing his photograph nor his signatures. He also denied

that it was containing his hand writing. When he was shown

corresponding passport, he reiterated that even such passport

Ex.PW1/B was neither bearing his photograph nor signatures. He

also claimed that he was never told by army that any such passport

was issued in his name or that he was required to report at IGI Airport

to board any flight on 01.11.2007. He also claimed that he had never

purchased by E-ticket or obtained any boarding pass to travel from

New Delhi to Frankfurt by Air India Flight. Virtually similar stand has

been taken by PW3 Jasvir Singh, PW4 Jagtar Singh and PW5 Sher

Singh.

7.11 I have seen the cross examination of these witnesses as

well and there does not seem to be any dispute that these four

prosecution witnesses never applied for any passport and never

signed application forms. I have seen the application forms as well as


the corresponding passports and from the testimony on record, it can

be safely inferred that these army officials had never applied for

any official passport. These passports are not ordinary passports

and are rather official passports. All the aforesaid four accused

persons i. e. A5 Rajinder Singh, A6 Gurdev Singh, A7 Varinder Singh

and A8 Gurjant Singh are private persons and therefore, they are not

entitled to official passport at all. Visa stamp is also there on all such

four passports which bear the same scanned photograph as is there

on the passport and the corresponding application form.

7.12 So far so good.

7.13 However, prosecution does not possess any material to

show that application forms for obtaining official passports pertaining

to said four witnesses were filled by these four respective accused

and signed by respective accused. Rather, according to the own case

of prosecution, all such application forms i. e. Ex.PW1/A, Ex.PW3/A,

Ex.PW4/A and Ex.PW5/A were filled by A1 Suresh Babu and he had

also forged signatures of Col. Satender Singh on all such application

forms. Thus, even as per CBI, it was never felt that application

Ex.PW1/A seeking passport in the name of Bikram Singh was filled

and signed by A5 Rajinder Singh or that Application Ex.PW3/A (D49)

was filled by A6 Gurdev Singh or that application Ex.PW4/A (D48)

was filled by A7 Varinder Singh and application form Ex.PW5/A (D50)

was filled by A8 Gurjant Singh.


7.14 Specimen hand writing and signatures of all four

accused persons were taken during investigation. These were also

sent to CFSL for necessary comparison also. Following chart would

be very handy to appreciate report of Handwriting Expert:-

Sl. No.

Name of accused Specimen hand writing

Questioned hand writing

1 A5 Rajinder Singh S-161 to S-165 Q91, Q96, Q437, Q450

2 A6 Gurdev Singh S-166 to S-170 Q79, Q83, Q397, Q434

3 A7 Varinder Singh S-246 to S-257 Q74A, Q77, Q399

4 A8 Gurjant Singh S-171 to S-175 Q85, Q90, Q443, Q449

7.15 All said specimen hand writing sheets are part of

supplementary documents. Questioned hand writing are those which

appear in the application form and on the passport and as per the

opinion of hand writing expert, which has been proved as Ex.

PW42/B, it was found not possible to express any opinion whether the

person who had written the aforesaid specimen hand writing was

also the author of the corresponding questioned hand writing.

7.16 This clearly means that there is nothing to suggest that

these four persons had filled their respective application forms.

Moreover, there is no witness to that effect either. I emphasis that

this was not even the case set up by CBI.

7.17 I have carefully gone through the entire testimony on

record and I have failed to find out any material which may show that


these four accused persons i. e. A5, A6, A7 and A8, at any prior

point of time, conspired with any other co accused person. A7 had

allegedly reached Airport directly same day. Even if I assume for a

moment that A4 Navneet Singh had brought A5, A6 and A8 to

Delhi and even if it is assumed that they all had stayed in Hotel in

Delhi a night before, that fact, by itself, cannot infer that A5, A6

and A8 were sharing conspiracy with A4 or for that matter with

other accused persons.

7.18 It seems to me that they all merely wanted to go abroad

and had paid money for facilitating their journey. They wanted to

have passport, visa and E-ticket and for that they might have shelled

out hefty money but that does not mean that they were sharing any

conspiracy, at larger level, with other accused persons. They were

hardly concerned as to how such passports, visas and tickets were

being arranged by others. Merely because, they wanted these things

cannot be meant to understand that they were party to actual act of

forging and were sharing common intention with others or that there

was a common object in this regard.

7.19 Now let me see whether they were possessing

fake and forged official passports and whether they used

such passports on 01.11.2007.

7.20 In this regard, I would straightway come to the testimony

of officials who were posted at IGI Airport that day.


7.21 PW6 Sh. Pawan Kumar was posted as Counter Supervisor

with IGI Airport, Terminal no.2. He deposed that case of five

passengers were brought to his knowledge by his subordinate namely

Sh. Harish Kumar(PW7) and Amit(PW17). Before minutely scrutinizing

the testimony of PW6 Pawan Kumar, it will be useful to see the

testimony of PW7 Harish Kumar and PW17 Amit Kumar.

7.22 PW7 Harish Kumar was working as customer agent with

IGI Airport and according to him, firstly Jasvir Singh (name of

passport holder is Jasvir Singh but it was allegedly used by A6

Gurdev Singh) came to the counter and on the appearance of the

passport holder, he developed a doubt and asked about his identity

card which such person was not able to produce. He then asked

him about logo of army band which he refused to show claiming that

he did not carry such logo on his clothes. According to Harish Kumar,

he had a doubt whether such person was in fact an army personnel,

therefore, he interrogated further but since he was not satisfied, he

produced him before his counter supervisor. He also deposed that

there were such 5 like persons who were present and he identified

them correctly in the court. It would be important to mention that A7

Varinder Singh was not present in the court at the time of deposition

and was exempted from appearance through counsel and his identify

was not even disputed. According to Harish Kumar, he took all the

five accused persons out of queue and handed over them to Sh.

Pawan Kumar Bali. Most importantly, testimony of this witness is

completely unrebutted and uncontroverted. No question or

suggestion was put to him by anyone. PW7 Harish Kumar was shown

passports during deposition and he claimed that all such five


passports were shown to him. So much so, he even identified E

Tickets. He deposed that he had checked such passports and E

tickets that day as well.

7.23 PW17 Amit Kumar was also on duty along with Harish

Kumar that morning and according to him out of those five accused

persons, three were standing in the queue in front of Sh. Harish

Kumar and two accused persons were standing in the queue in front

of his desk. Naturally, at IGI Airport one would come across

various counters for checking in purpose and from the testimony of

Amit Kumar it seems that three accused persons were in one row

and two in the other row. As per PW17 Amit Kumar, when Harish

Kumar made inquiries from the accused persons, it was revealed

that there were five such like persons and the two persons, who

were in the queue in front of his desk, then joined the three other

persons and when they were asked to show identity cards, none of

them could produce identity card and on the basis of suspicion, the

matter was reported to PW6 P. K. Bali. Undoubtedly, this witness

claimed that he could not identify those five persons and even CBI

did not get perturbed and did not choose to cross examine him on

the aspect of identification but fact remains that he has,

emphatically, claimed those five persons joined together and when

they were asked to show identity cards, they could not show the

same. In cross examination, this witness, pursuant to one question,

answered that these persons were apprehended at the time of

issuance of Boarding passes.

7.24 Reverting back to the testimony of PW6 Pawan Kumar


Bali, he has deposed that when the matter was reported to him, he

asked them to produce official documents to substantiate their

official capacity, they failed to produce any document except the

passport. He also put certain questions to them about their place of

posting, nature of job and official identity cards and since their reply

was not found satisfactory, the matter was reported to Air India

Security namely R. K.Vaid and Harish Masand and all the five

passengers along with their passports, air tickets and complete

baggage were handed over to the personnel of Air India for further

necessary action without checking in i. e. without issuing boarding

passes. He also deposed that during the relevant time i. e. year

2007, boarding passes used to be generated from the computer

and manual boarding card were used to be issued only in

emergency cases.

7.25 It is now required to be seen whether these five

accused persons including A2 Nagarajan Israel Raja were able

to collect any boarding pass or not.

7.26 There is no absolute perspicuity with respect to such

aspect of the case. Prosecution has placed on record boarding

passes. These are D12 to D16 and have been exhibited as Ex.PW6/A

to Ex.PW6/E. These are manual boarding passes and not computer

generated boarding passes and when these boarding passes were

shown to the concerned prosecution witnesses, they categorically

claimed that these were never issued by Air India. PW6 Pawan Kumar

has claimed that none of these boarding passes were issued by any

staff working under him that day. Even otherwise these were


incomplete as detail of boarding number, boarding time, gate and

seat number are not found filled up. Similarly, PW7 Harish Kumar

has deposed that these boarding passes were not filled up by him

and during those days computerized boarding passes were used to

be issued. PW17 Amit Kumar has also deposed that since there was

a suspicion, the matter was brought to the notice of Sh. Pawan

Kumar Bali in order to see whether boarding cards were to be issued

to these passengers or not.

7.27 I would also like to mention that PW32 Sh. S. T. Norbula

was also posted at IGI Airport as Assistant General Manager. He was

partly examined on 29.11.2010 but thereafter he was not produced

and his sketchy examination, even otherwise does not serve any

purpose.

7.28 Thus, it is, if truth be told, not understandable as to what

prosecution wanted to show by placing on record such boarding

passes.

7.29 In order to find out the real story behind such boarding

passes, I had to see statements u/s 161 Cr. PC and when I went

through statement u/s 161 Cr. P.C. of PW6 Pawan Kumar Bali, it was

discovered that in his such statement, he had categorically claimed

that boarding passes were not issued and these boarding passes

(Ex.PW6/A to Ex.PW6/E) appeared to be dummy boarding cards

prepared to establish the presence of the passengers at Air India

check-in counter. No such fact was stated by P. K. Bali in witness box

and even the prosecution did not try to get the aforesaid fact clarified


when Pawan Kumar Bali deposed before the court.

7.30 Be that as it may, fact remains that the testimony of

PW6 Pawan Kumar, PW7 Harish Kumar and PW17 Amit Kumar

categorically indicate that during that period, boarding passes used

to be computer-generated and not manually and all the boarding

passes Ex.PW6/A to Ex.PW6/E have not been categorically issued by

them or by any staff working at the Airport. Meaning thereby, these

were never issued by the concerned officers of Air India at the time of

checking-in.

7.31 Naturally, the question of issuance of boarding passes

would have arisen only when credentials of the passengers were

established. Since at the time of checking-in, the officials at the

counter developed suspicion, the matter was immediately referred to

the supervisor and since none of the passengers could give any

satisfactory reply and failed to show their identity cards, they were

detained for further necessary action. Naturally, in such a situation,

there was never any occasion to have issued any boarding pass. At

the time of such checking-in, simultaneous with the issue of boarding

passes, luggage is also checked in and tags are issued for such

luggage. It becomes very much apparent since immediately a

suspicion had arisen, all such five persons were isolated and were

questioned and therefore, they were not given any boarding pass at

all. Luggage tags were also not issued. Thus the boarding passes

contained in D12 to D16 which have been exhibited as Ex.PW6/A to

Ex.PW6/E are not strictly speaking boarding passes which are issued

by concerned airway after having satisfied the credential of any


passenger. I also cannot rule out the possibility that these might have

been sort of dummy passes filled for assistance of counter officials.

Naturally, someone from the side of accused would have filled the

same. CBI did not find it prudent to send these to GEQD for obtaining

report. Who knows, it might have filled by any of these five accused.

7.32 I would here also like to make reference to departure

cards which are D143 to D147 and these are, unfortunately, not

proved by anyone. These also bear signatures of concerned five

accused persons but prosecution has not taken any pain to prove

these documents and also the stage when such departure cards were

required to be filled and prepared and therefore, I am left with no

option but to exclude departure cards from the scope of present

discussion. On careful perusal of statements of witnesses recoded u/s

161 Cr.P.C, I realized that one Discrepancy form was also filled at the

Airport at Boarding counter by Assistant Manager (Security) Sh. RK

Vaid. PW BP Joshi had made reference about the same during

investigation but surprisingly, such Discrepancy form was not made

part of the record. It would have also fully established as to when

exactly, the impersonation was detected. Sh. R.K. Vaid was not cited

as witness and testimony of PW 15 Sh. Joshi cannot be read being

incomplete.

7.33 The testimony of aforesaid airport officials would,

however, indict that all such five accused persons were in the queue

and were in the process of checking in for catching flight.

7.34 These passports are not ordinary passports. These are


white passports as these are popularly known. Since counter officer

saw these white passports i.e. official passports, he, at once, asked

for identity cards from the passengers. In such a situation, standing

in queue for obtaining boarding passes and showing passports and E

tickets becomes a very crucial and decisive factor. They failed to

produce their official identity card and could not give any satisfactory

reply to establish that they were army officials. PW6 Pawan Kumar

has categorically deposed that they failed to produce any document

except the passport. Naturally, when they must have appeared

before the counters and were in the queue they all were having their

passport with them besides E-tickets. PW7 Harish Kumar has also

categorically deposed that accused persons had brought electronic

tickets, too, with them. So much so, he deposed that such E-tickets

i. e. Ex.PW7/1 (D17) pertaining to passenger Anil Kumar, Ex. PW7/2

(D18) of passenger Bikram Singh, Ex.PW7/3 (D19) of passenger

Jasvir Singh, Ex.PW7/4 (D20) of passenger Jagtar Singh and Ex.PW7/5

(D21) of passenger Sher Singh were also produced by accused

persons along with their passports.

7.35 It clearly indicates that all such five accused persons

including A2 Nagarajan Israel Raja were having their respective

passports with them. All such passports were official passports.

These were containing their photographs but rest of the particulars

were, from top to bottom, incorrect.

7.36 I am not prepared to accept that these five accused had

not even seen the passports and that had no occasion to use the

same. A bare perusal of the passport would have revealed that it was

official passport and except for photograph, ever fact mentioned


therein related to identity of passenger was untrue. If any person

pays hefty amount for obtaining passport, visa and E-tickets, he

would immediately see the particulars mentioned on the passport

and a casual glance would have revealed that except the photograph,

nothing else was correct. Even the name has been mentioned

incorrectly. Naturally, the names were as per the reserved list but

the photograph was of the accused.

7.37 It really does not matter much whether these five

accused were standing in one queue or two queues. Stand of

prosecution witnesses, in this regard, is found consistent from

inception. Clinching point is flashing of passports and E-tickets for

procuring Boarding Passes. I am mindful of the fact that in two

passports D140 and D141, there are immigration stamps as well.

Normally question of immigration should arise after check-in was

successful. However, this does not create any sort of ambiguity in the

case. Rather, it establishes that accused were perhaps able to even

by-pass hurdle at check-in counter.

7.38 Sh. Paramjeet Singh, counsel for A5, A6 and A8 has

contended that none of the complainant of police FIRs has been

examined. He has also wondered as to how the boarding passes,

passports etc were seized by CBI as no memo has either been

prepared or proved. I am of the view that since investigation in toto

had been transferred from Delhi Police to CBI, CBI got the entire

record automatically. These documents were already there in the

police file and once charge was assigned to CBI, it got custody of

entire file including documents and, therefore, there was no


requirement of preparing any formal seizure memo. Undoubtedly,

only one FIR recorded by Delhi Police has been got proved whereas

same Duty officer i.e. PW8 SI Subey Singh could have proved all the

FIRs, he being duty officer in all the cases but lacuna appearing in

this regard cannot take apart the entire case. It also really does not

matter even if A5, A6 and A8 were brought to IGI Airport by A4. A5,

A6 and A8 are themselves are to be blamed for using gorged

passports. Had their intention other than malafide, they would not

have dared to stand in queue to obtain boarding passes. Their

standing in queue rather reflects their knowledge and willingness to

use such passports as genuine passports.

7.39 Sh. Kulvinder Singh, counsel for A7 Varinder Singh has

argued that there is nothing to show that accused Varinder Singh

was possessing any passport much less a forged official passport.

He has also contended that there is no TIP and therefore, even

otherwise the identification before the court for the first time has no

value in the eyes of law. I am not impressed with such contention

at all. I need not reiterate that PW6 Pawan Kumar, PW7 Harish Kumar

and PW17 Amit Kumar have categorically claimed that all such

accused persons had produced their passports. PW6 Pawan Kumar

has categorically deposed that when accused were asked to show

official documents, they could only show the passport and reply

given by them was not satisfactorily and all such passengers along

with passports, air tickets and baggage were handed over to Air

India Authorities for further necessary action.

7.40 Undoubtedly, PW6 Pawan Kumar did not point out


towards any accused and did not make reference to any of such

passport but PW7 Harish Kumar has categorically identified all such

passengers. A7 Varinder was, at that time, represented through his

counsel and fact remains that his identity was not disputed. Now, in

such a situation, defence counsel cannot claim that case is liable to

fail for non-holding of TIP. Moreover, he has also forgotten the fact

that TIP is required when a person flees after committing any offence.

Here, the airport officials had isolated these five persons and then

were handed over to security and in such a situation there was no

requirement of holding of any TIP. Most importantly, the testimony

of PW7 Harish Kumar is completely unrebutted and uncontroverted

and, therefore, defence cannot agitate regarding identity and use of

passports. Undoubtedly, PW17 Amit Kumar has supported the case

of prosecution but he also claimed that he did not remember their

faces as more than two years had elapsed but when this witness was

cross examined, he categorically deposed that it was correct that

such accused persons were apprehended before the issuance of

boarding passes. His evidence gives full corroboration to the case of

prosecution and shows that private persons had impersonated as

Army officials and had flashed official passports. I would also like to

mention that even the testimony of PW6 Pawan Kumar is completely

unchallenged and therefore, keeping in mind the testimony of all the

five army officials in whose name such official passports were meant

to be as well as the testimony of airport officials, it leaves no doubt

in my mind that all such five persons including A2 Nagarajan Israel

Raja were knowingly and consciously possessing forged and fake

official passports and attempted to cheat the airport authorities by

using the same.


7.41 As far as A5 Rajinder Singh, A6 Gurdev Singh, A7

Varinder Singh and A8 Gurjant Singh are concerned, I have not

been able to find out any material which may show that they were

concerned with preparation of forged passports or they had

conspired with any other accused for said purpose. As per the

admitted case of prosecution, A7 Varinder Singh had come to airport

directly. There is nothing to suggest that A7 had ever come in

contact with any other accused at any prior point of time. Thus, A5 to

A8 cannot be said to be in conspiracy with other remaining accused

persons. They merely wanted to go abroad on work permit. It is not

unusual to observe that youth of affluent and agriculturally rich state

of Punjab is always fascinated and obsessed for abroad. They are

always desirous of living abroad and settling there. They don’t mind

spending and paying through nose for such purpose. They are also

least concerned as to how their agents ultimately get them such

travel documents. They are least concerned about any forgery which

might have been committed by their agents or any other illegal act

committed by them. To haul them up for larger conspiracy related to

forgery of signatures of Col. Satinder Singh would be a very fanciful

thinking. In L.K. Advani and Ors. v. Central Bureau of

Investigation 1997 CriLJ 2559, it was held that for proving

conspiracy, the prosecution has to prove meeting of minds for

commission of offence. It is true that each conspirator need not take

an acting part in commission of each and every one of the

conspiratorial act as was held in State of Himachal Pradesh v.

Krishan Lal Pardhan and Ors AIR 1987 SC 773. However, even in

said case of Krishan Lal Pradhan (Supra), Supreme Court held that


meeting of mind was essential to constitute an offence of conspiracy.

Factum of proving the meeting of mind and factum of entering into a

conspiracy has always been a daunting task. Apex Court, in the case

of Kehar Singh and Ors. v. State (Delhi Administration) AIR

1988 SC 1883, observed that conspiracy can be proved by

circumstantial evidence as well as by direct evidence and that though

the conspiracy is hatched in secrecy, the prosecution must prove

some physical manifestation of agreement although it may not be

necessary to prove actual meeting of two persons or the words by

which the two persons communicated. If this principle is applied, it

would become comprehensible that there is no circumstantial

evidence or direct evidence showing meeting of minds between these

accused with other co-accused for commission of offence of forgery.

The meeting of mind of A5 to A8, if any, is shown to have been for

the purpose of traveling together and nothing more.

7.42 Be that as it may, it becomes very much clear that all five

accused persons including A2 Nagarajan Israel Raja had knowingly,

deliberately and dishonestly used forged and fake passports as

genuine passports. They were not triumphant in their design as they

were immediately caught. However, they reported at the counter

with E-tickets and flashed their passports which completed the act of

cheating. It really does not matter that they were nabbed and were

not able to catch the flight. They cheated airport authorities and

they used forged passports as genuine and impersonated as

army officials. As per sec 3 of Passports Act, no person shall depart

from, or attempt to depart from, India unless he holds in this behalf a

valid passport or travel document. None of said accused possessed


valid passport.

7.43 Resultantly, A5 to A8 are hereby individually held

guilty and convicted u/s 419, 420 and u/s 471 IPC as well as

u/s 12 of Passports Act.

Involvement of A4 Navneet Singh

8.0 Now let met come to the role of A4 Navneet Singh.

These are the broad allegations against him:-

(i) He was instrumental in arranging three passengers,

namely, A5, A6 & A8.

(ii) These accused persons were got photographed at B.K.

Photo Emporium, R.K. Puram, New Delhi and at that time

other two accused persons, namely, A2 & A3 were also

present.

(iii) A4 was in league with main perpetrators and had

transferred a sum of Rs. 4.90 lacs in the account of his

co-accused A3 David Abraham.

(iv) When A3 had booked a room in hotel Airport Inn, Mahipal

Pur, Delhi on 31.10.2007, A4 had also visited that hotel

and had met A2 & A3 and had brought A5, A6 and A8 to

Delhi.

8.1 Learned PP has stated that in addition to the aforesaid

circumstances, statements of his co-accused A5, A6 & A8 also help

the case of prosecution as they have, in no uncertain terms, stated

before the Court that they all had been duped by Navneet Singh who


had assured to send them abroad on work-permit and hefty amount

was paid to him for arranging such work-permit. According to learned

Prosecutor, such statements of co-accused can definitely be used

against A4 Navneet Singh.

8.2 Let me now see whether these allegations have been

duly substantiated by the prosecution or not.

8.3 As regards photographs, prosecution was heavily relying

upon the statement of PW Balbir Gupta. He was owning M/s B.K.

Photo Emporium, Shop No. 7, Sector-8 Market, R.K. Puram, New Delhi

and during investigation, he had revealed that A2 had come along

with A5, A6 & A8 and he had taken their photographs. This witness

has not graced the witness box. Summonses were sent to him but

summons returned unserved. However, if his version u/s 161 Cr.P.C. is

accepted as it is, then it would reveal that he has not made even a

whisper regarding A4. He merely claimed that photographs of A5,

A6 & A8 were taken in his studio. These three persons were brought

to his studio by A2.

8.4 I am indeed not able to understand as to on what basis,

investigating agency was able to decipher that these photographs

were clicked at M/s B.K. Photo Emporium. This would have been

possible if there was any sort of stamp of studio on the reverse of the

photographs. No such fact has been claimed by the investigating

officer. No negative was collected from M/s B.K. Photo Emporium. No

proof regarding payment was either obtained and even the bare

stand taken in statement u/s 161 Cr.P.C does not take the case of

prosecution anywhere. The manner of identification during


investigation is not in good taste and leaves much to be desired.

Moreover, according to Balbir, his staff had clicked such photographs.

Nobody knows name of any such staff official either. Still, as I have

already noticed above, PW Balbir Gupta has not graced the witness

box, this fact does not stand proved at all.

8.5 Now I come to the fact regarding booking of room of

hotel Airport Inn and meeting of A4 Navneet Singh with his co-

accused in said hotel. In this regard, prosecution has examined only

one important witness i.e. PW9 Ram Prakash Chauhan. He was

working as Manager in said hotel and was on night duty on

31.10.2007. Register D-122 was shown to him and he claimed that

such register was of their hotel and the entry at page no. 105 was in

his hand and as per serial no. 1525, on 31.10.2007 one Mr. David A.

Johnson i.e. A3 had come at hotel at about 10.00 PM and got a room

booked in the hotel on the pretext that his bosses would come from

Jallandhar and would stay there and accordingly room no. 305 was

booked. Accused David A. Johnson had signed the register at point

A400 and such register has been proved as Ex. PW9/A. He further

deposed that accused David A. Johnson had brought three persons

there and when asked to identify, he pointed out towards A2 & A4

i.e. accused Israel Raja and Navneet. However, witness was not

found very sure, as in his examination itself, he has deposed that

they might be the persons who had come that day. He was naturally

found very tentative and uncertain and when he was cross-examined

by the defence, he reiterated that he was not completely sure

whether A3 & A4 were the same persons and he also stated that he

had identified them as they were stoutly built. In his further cross-


examination, he deposed that he could not identify any of the person.

In such a situation, it would be hazardous to hold that A4

Navneet Singh was present in the hotel that night.

8.6 Let me now come to the all important and most

crucial transaction i.e. transfer of a sum of Rs. 4.90 lacs

allegedly by A4 in the account of A3.

8.7 There is no dispute that A3 is having a bank account with

ICICI Bank, Connaught Place and his account no. is 000705021330.

Even A3 admits such fact. According to prosecution, a sum of Rs.

4.90 lacs was transferred in the said account of A3 by none other

than A4. Prosecution has relied upon two sets of documents in this

regard. One set of documents consist of D-26 (Main List) and these

are three pay-in-slips and second set of documents is contained in

D-17 to 28 (supplementary list of documents).

8.8 Let me first see the documents D-17 to D-28 of

supplementary list. If prosecution case is to be believed then A4 had

deposited a sum of Rs. 4.90 lacs in Amritsar and such amount was

transferred to the said ICICI Bank account of his co-accused David A.

Johnson. As per case of prosecution, deposit was made in Amritsar

and finally amount was credited in the bank account of A3 in Delhi.

As I have already noticed above that there is no dispute that A3 is

having said current account with Connaught Place Branch of ICICI

Branch. Account opening form has been proved as Ex. PW36/A7

which contains photograph of A3 and his admitted signatures. A3


has also admitted such fact in his statement u/s 313 Cr.P.C. However,

he has pleaded ignorance about the aforesaid deposit slips. Four

pay-in-slips which ultimately remained with the bank are D-18 (Ex.

PW36/A1), D-26, D-27 & D-28. Only one deposit slip i.e. pay-in-slip

has been proved by prosecution. Remaining three pay-in-slips

contained in (D-26, D-27 & D-28) are unproved. Let me, still, see and

consider all these four pay-in-slips. First pay-in-slip contained in D-18

shows name of depositor as Karamjeet Singh. D-26 shows the name

of depositor as Surjeet Singh and D-27 & D-28 show the name of

depositor Sandeep Singh. Nobody knows as to who are these

Karamjeet Singh, Surjeet Singh and Sandeep Singh. There is

no investigation on this aspect at all. Secondly, it is not

made clear by the prosecution as to on what basis it has

come to the conclusion that such amount was deposited by

A4 Navneet Singh only. Handwriting appearing on such pay-in-

slips were never sent to CFSL for necessary comparison with

specimen or admitted handwriting of A4. Name of depositor is also

not shown as Navneet Singh in any of the slips and, therefore, there

is virtually no material on record to indicate that any such amount

under any such slip was actually deposited by A4 through said slips

which are bank’s copies.

8.9 It is a matter of common knowledge that as and when

any cash amount is deposited in bank, one part of the pay-in-slip is

retained by the customer as customer’s copy. Out of these four pay-

in-slips, three such customer’s copies were seized by the

investigating agency during investigation. I am making reference to

D-25 (Main List). It is seizure memo dated 26.04.2008 and these


three pay-in-slips (customer’s copies) were handed over to CBI by

one Kulwinder Singh. I again say that seizure memo is dated

26.04.2008. This is important because charge-sheet was filed on

12.05.2008. Therefore, seizure memo is prior to the date of filing of

charge-sheet. Prosecution did not bother to explain as to who is this

gentleman known as Kulwinder Singh who had handed over those

counterfoil/ customer’s copies to the investigating agency.

8.10 It baffled the court when learned counsel for A4 &

A7 disclosed before the Court that the persons mentioned as

Kulwinder Singh is none other than he himself. He claimed that

he had handed over those receipts to the CBI and at that time he was

representing other accused persons also. There is indeed a big lapse

on the part of investigating agency. They did not bother to record the

statement of Kulwinder Singh. It should have been ascertained by

the investigating agency as to how Sh. Kulwinder Singh had come in

possession of such counterfoils of pay-in-slips. Naturally, these must

be with the person who had deposited such amount in the account of

A3 but investigating agency took the matter very casually and lightly

and did not make any endeavour to investigate this aspect for

complete substantiation of theory of deposit by A4 in the account of

A3. So much so, seizure memo D-25 is lying unproved. No IO ever

made any reference to such document. Seizing Officer is some

Manjeet Singh but Manjeet Singh has also not been cited as witness

and neither has been examined by the prosecution and, therefore,

such seizure memo cannot be read in evidence. Similarly, all three

pay-in-slips i.e. D-26, D-27 & D-28 have not been proved in any

manner whatsoever. Nobody knows as to in whose handwriting such


pay-in-slips are and moreover mention of names of other persons like

Sandeep Singh, Surjeet Singh and Karamjeet Singh has complexed

the entire scenario and it cannot be conclusively inferred that it was

A4 who had deposited such money.

8.11 Learned PP has, however, stated that Section 30 of

Evidence Act stands attracted and the statement made by co-

accused can be read against the other. He has drawn my attention

towards statements u/s 313 Cr.P.C. of A5, A6 & A8 who all have, in

one voice, indicted A4 Navneet Singh as the person who had taken

payment from them. I am, however, afraid that even such

statements cannot be said to be of great importance as even

otherwise there is no corroboration of any sort from anywhere else.

Mere disclosure by any accused u/s 313 Cr.P.C. indicting his another

co-accused would not be per se conclusive and sufficient. Section 30

Evidence Act provides that when more person than one are tried

jointly for same offence, and confession is made by one of such

persons affecting himself and his co-accused in the same case, the

Court may take into consideration such confession as against the

maker as well as against such co-accused. The basic principle behind

this provision is that if a person makes a confession implicating

himself, it would demonstrate that maker of confession is coming up

with truth. In the present case, however, A5, A6 and A8 have not

implicated themselves and, therefore, Section 30 Evidence Act does

not stand attracted. Moreover, Section 30 Evidence Act only provides

that confession of co-accused can be taken into consideration but

scope of such consideration is not unlimited. It is rather very

restricted. If a confession is made by one person implicating himself


as well as his co-accused, such confession can only be used to lend

assurance to the other evidence against the co-accused. If there is

no other legally admissible evidence against such co-accused, such

co-accused cannot be convicted merely on the basis of confessional

statement coming from the mouth of his accomplice. Such

confessional statement made by his associate is obviously a very

weak type of evidence and it does not even fall within ambit of

evidence as contained u/s 30 of Evidence Act. Reference be made to

HARI CHAND KURMI VS. STATE OF BIHAR AIR 1964 SC 1184

and MATTO SINGH VS. STATE OF HARYANA 2008 (4) AD CRL.

168.

8.12 I have seen defence evidence i.e. statements of DW1

Mandeep Singh and DW2 Balbir Singh. They both have been

examined by A5, A6 & A8 and according to them, accused Navneet

Singh had assured that A5, A6 & A8 could be sent to Germany and

he demanded Rs. 8 lacs per person. DW1 Mandeep Singh has

deposed that Navneet Singh assured that they would be sent on

work-permit of Germany and genuine visa and also told that being

relative, he was not going to deceive them at all. He has also

deposed that Rs. 1 lacs for each such accused i.e. A5, A6 & A8 was

given to him and then on 20.10.2007, further amount of Rs. 3 lacs

each person was further paid and the balance amount of Rs. 4 lacs

was to be paid on 30.10.2007. He also deposed that on 30.10.2007

at about 11.00 PM accused Navneet Singh took all of them to Delhi

and then later on, a telephonic call was received from police that they

all had caught and arrested. He also deposed that accused Navneet

Singh had cheated all the three accused persons and had not even


returned their money. Testimony of DW2 Balbir Singh is also to the

similar extent. These witnesses were grilled by counsel for A4 but

they denied that they were deposing falsely at the instance of one

Anoop Singh. I feel that even such testimony coming from the mouths

of defence witnesses cannot be permitted to be accepted as

substitute of prosecution evidence and as forceful and relevant.

These are virtually the version of co-accused.

8.13 In view of aforesaid, though it is quite possible that A5,

A6 & A8 might have contacted A4 and might have paid money to

him yet in view of the evidence on record, I am not able to hold so for

want of sufficient legally admissible evidence. If A5, A6 & A8 feel

that they have been duped by A4, they can always file a report or

complaint in this regard with competent Authority or court of law. In

the present matter, there is no legally admissible material connecting

him with any other accused or showing meeting of minds or his

physically meeting any of his other accused.

8.14 Resultantly, I have no option but to acquit A4

Navneet Singh of all the charges.

ROLE OF A2 AND A3

9.0 Let me now see the role of A2 and A3 and also as to how

they came into contact of A1.

9.1 Talking about A2, naturally, A2 was present at IGI

Airport. He had also used forged passport and cheated by

impersonating as Army official i.e. PW2 Anil Kumar. Let me see


whether his role is limited to that or expanded further.

9.2 Allegations against him are as under:-

(i) He was co-conspirator and knew A1.

(ii) He was possessing forged passport and used the same as well.

(iii) He had brought A5, A6 and A8 at Studio and their photos were

later on handed over to A1 for affixation on passports.

(iv) He was present at Hotel Airport Inn.

(v) He purchased E tickets.

9.3 Prosecution was heavily dependent upon the statement

of Sh. N.K. Vijay Mohanan who claimed, during the investigation, that

A1 knew A2 but, unfortunately, he has not supported the case of

prosecution. PW20 Sh. N.K. Vijay Mohanan was posted in Army Band,

Delhi Cantt, New Delhi. He deposed that he knew accused M. Suresh

Babu who was also posted in Army Band. However, thereafter he

demolished the prosecution case claiming that he did not know A2.

He rather claimed that he knew one David Suresh Babu. Here, I

would like to observe that he is naming David Suresh Babu who was

earlier in Army Symphony Band and was in Madras Regiment. This

name ought not to be confused with David Abraham Johnson. These

are two different personalities and should not be considered to be a

case of any typographical error either. During investigation too, this

witness talked about David Suresh Babu and not David Abraham

Johnson.

9.4 This witness was very important for prosecution because

he could have supplied the linkage between A1 on one hand and A2

on the other hand but this witness resiled from his previous


statement and denied knowing anything about A2. He was grilled by

the prosecution with the permission of the Court but he remained

adamant to his stand and denied meeting A2 Raja in Church.

9.5 Another allegation against A2 is to the effect that he had

taken A5, A6 & A8 to M/s B.K. Photo Emporium where their

photographs were taken and such photographs were then handed

over to A1 M. Suresh Babu. I have already noticed above that

prosecution has not been able to prove such fact in any manner

whatsoever.

9.6 Regarding his presence at Hotel Airport Inn, again,

as already noticed above, PW9 Chauhan has not been able to

identify him properly.

9.7 However, there is one more aspect showing

complicity of A2 i.e. procurement of E-tickets. Fortunately,

such fact has been proved by the prosecution and in this regard

testimony of PW12 Sh. Yogesh Kumar Bhardwaj and PW13 Neeraj

Handa is of great significance. PW12 is Managing Director of M/s

Sunrise Airways Pvt. Ltd and according to him, anyone could

purchase air tickets from their company or through their travel agent.

He deposed that in the present case, air tickets were issued to five

passengers through travel agent i.e. M/s Metro Travel and Sh. Neeraj

Handa is one of the owners of M/s Metro Travels.

9.8 PW13 Neeraj Handa has also supported the case of

prosecution. He has deposed that in the year 2007, one person,


namely, Anil Kumar @ Raja had come to his office and asked for air

tickets for five persons including himself for the destination from

Delhi to Frankfurt and from Frankfurt to Mumbai and also from

Frankfurt to Berlin and from Berlin to Frankfurt. Such person Anil

Kumar @ Raja also claimed that he was government servant and

some officials had to attend a function in Berlin and he had to

proceed there along with other officials. According to PW12 Neeraj

Handa, that person Anil Kumar @ Raja then gave him photocopies of

passports and visa whereupon he (PW13) went to M/s Sunrise Airways

and obtained air tickets and handed over the same to Anil Kumar @

Raja. Such E-tickets were shown to the witness during recording of his

testimony and he identified such tickets Ex. PW7/1 to Ex. PW7/5.

Original passports of such persons were also shown to the witness

and witness admitted that photocopies of visa and photocopies of

such passports were also given to him by accused Anil Kumar @ Raja.

When he was asked to identify accused Anil Kumar @ Raja i.e. A2, it

was noticed that accused Raja was not physically present in the Court

that day but his counsel did not dispute his identity. This clearly

indicates that there is no disagreement that such E-tickets were

obtained by none other than A2. This witness was also shown

photograph of such accused on passport D140 i.e. Ex. PW2/C and

from such passport, he was able to identify the accused and

categorically claimed that he was the same person who had come to

book and collected the tickets. In his cross-examination, he claimed

that he had given bank statement to CBI in order to show that

payment was made by accused Raja and then such payment was

credited to M/s Sunrise Travels. Surprisingly, counsel for accused

Raja did not choose to cross-examine the witness and, therefore,


testimony of PW13 Neeraj Handa clinches the issue in favour of

prosecution and it stands established that five E-tickets in question

were booked by A2 and at that time A2 was even holding all the five

fake official passports and he had even given the photocopies of

passports and photocopies of visas to Neeraj Handa. All such e-

tickets were also identified by PW12 Sh. Yogesh Kumar Bhardwaj.

9.9 Sh. Pandey has, however, come up with a very novel

argument. He contends that since tickets were purchased by agent

Neeraj Handa and he had made payment to M/s Sunrise Airways, Mr.

Handa should have been made accused. According to him, A2

himself never purchased tickets at all. I don’t find any merit in such

contention. Mr. Handa was merely owner of M/s Metro Travels and as

agent of M/s Sunrise Airways made booking as per wishes of A2. His

role was to provide tickets to the customers. He was shown passports

and Visas. So much so, A2 rather claimed himself to be a

government employee and sought to book tickets for some official

function. Merely because, tickets were booked through M/s Metro

Travels, no criminality can be attributed to such concern or to Mr.

Handa. On the other hand, categoric, unshaken and virtually

unrebutted testimony shows involvement of A2. His false

misrepresentation and his holding forged passports is a clear pointer

to his being a partner in crime.

9.10 Sh. Pandey has further contended that even PW 35

Surjeet should have been made co-accused. I have carefully perused

the testimony of this witness and I am of the considered opinion that

his testimony rather strengthens the case of prosecution against A2.


He deposed as under:-

“I know accused Nagarajan who was known as Raja and he

used to come to our office since 2002-2004 and he used to

come for booking of tickets. I was suffering from skin disease

and I had discussed my problem to him and he brought

medicine for me from various places. We started meeting and

developed a sort of friendship. I had been to his place with my

wife also. Once he told me that a group was to go

Germany in 2007 and he told me that he could arrange

any person of my choice to become part of that group.

Vijay Pal Singh @ Vicky is son of chachi of my wife and he

suggested name of one Varinder Singh of Punjab. I told his

particulars of Varinder Singh to Raja. Raja then

demanded passport of Varinder Singh and two passport

size photograph and advance Rs. 1 lac. Raja had

demanded Rs. 6.5 lacs in all for said purpose. However, I

had told Vijay Pal Singh @ Vicky that total expenditure would be

of Rs. 7.5 lacs. I gave passport, photographs and advance of

Rs. 1 lac in August to Raja. He asked me to wait for two

months. On 31.10.2007 I was told by Raja that the work had

been done and asked me to call that Varinder Singh. I called

Varinder Singh at my house. Varinder Singh had come along

with two more persons. I can identify accused Varinder Singh.

(Accused Varinder Singh is exempted from personal

appearance for today and his identity is not in dispute). Then I

took them to one hotel at Mahipal Pur. Varinder Singh had to

catch flight next morning. Then on 01.11.2007 I took Varinder

Singh from said hotel to IGI Airport. There I met Raja and two


other persons whom I cannot identify. They were in black coats.

I left Varinder Singh at Airport and left. Same morning at

6.30/6.40 AM I got call from Raja that they had been detained

at the Airport. I got afraid and I also left my house and did not

go back to my house for approximately six months. Varinder

had to make the balance payment of Rs. 5.5 lacs but he

claimed that he would make the payment only when he was

able to land in Germany and as a surety for time being, I gave

four cheques from my Standard Chartered Bank as guarantee

to Raja. Raja kept those cheques and agreed to send Varinder

and also assured that he would return my cheques once

Varinder landed in Germany and once he got the balance

amount in cash. Raja had also told that once Suresh Babu was

also working with him. However, I never met him.”

9.11 Thus testimony of PW35 Surjeet Singh is found to be very

significant. It unquestionably indicates that A2 was in the thick of

things since very beginning. He dropped hint that anyone could be

sent Germany on substantial payment and demanded money i.e. Rs.

6.5 lacs. He collected photograph etc well before actual forgery. He

called them at Hotel of Mahipalpur on 31.10.2007. According to Pw

35 Surjeet Singh, said Raja i.e. A2 was also present at hotel that

evening. This fact remained unchallenged and rather proves

presence of A2 at Hotel that evening. This rather makes up the

loss emanating out of shaky identification by PW9 Chauhan.

9.12 I have already scrutinized testimony of Airport officials

and the discussion done there stands good for A2 as well. Sh. Pandey

cannot be permitted to dig out any mileage due to non-examination


of any official of Immigration or Airport Security. According to Sh.

Pandey, it is not clear as to who recorded statements u/s 161 Cr.P.C.

of Airport officials as IOs are coming up with contradictory versions

and, therfore, it should be automatically assumed that these

statements are prepared statements. I don’t agree with him on this

front either. In such type of bulky matters, it is not always possible for

any IO to distinctly remember as to statement of which particular

witness was recorded by him. Uncertainty or even giving incorrect

answer in this regard would not mean that all such statements are

prepared and fabricated statements.

9.13 It has also been argued that IO deposed that Hotel

register contained signatures of A 2 as well but when confronted he

denied said fact and it indicates some manipulation. Again, Sh.

Pandey is stretching himself too far and too away. When IO was

shown the register, he immediately corrected himself and admitted

that such register did not contain signature of A2.

9.14 My foregoing discussion would reveal that A2 has

committed offences u/s 419, 420 and u/s 471 IPC as well as

u/s 12 of Passports Act for being in possession of forged

passport and for using the same in fraudulent manner. But, in

addition to that, he is party to larger conspiracy. He knew

about Germany visit in advance. He possessed forged official

passports and visas which automatically reflects that he was

working in league with A1 else how could he lay his hands

upon such official passports. PW 35 Surjeet Singh also

implicates him. He was the one who had arranged E tickets.


He demanded money for sending person abroad in an illegal

manner. His asking for money shows his malafide intention.

10.0 Coming to A3, prime-most allegation against him is to

the effect that he had booked a room in hotel Airport Inn at Mahipal

Pur, New Delhi where, allegedly, other accused had also stayed.

Other momentous allegation against him is to the effect that he was

holder of ICICI Bank account in which the money had been

transferred in by impostor-accused persons.

10.1 Let me deal with aforesaid two aspects one by one

10.2 As regards booking of hotel, let me straightaway come to

the testimony of PW9 R.P. Chauhan. He was on duty in the night-shift

of 31.10.2007 and has proved the relevant Guest Register i.e. D-122.

It was shown to him during deposition and he admitted that such

register belonged to their hotel and entries on page no. 105 from

serial no. 1518 to 1525 were in his hand. As per entry at serial no.

1525, one Mr. David A. Johnson son of Sh. Perumal resident of G-124,

Wazirpur Colony, New Delhi had come to that hotel at about 10.00 PM

and got a room booked on the pretext that his bosses would be

coming from Jallandhar and would stay there. Accordingly Room No.

305 was booked for him and accused David A. Johnson signed such

register. Relevant page of such register has been proved as Ex.

PW9/A and signatures of David A. Johnson are at point Q-400 in token

of booking. Mobile Number and PAN Number of David A. Johnson are

also found mentioned. According to PW9 R.P. Chauhan, accused

David had come with three persons and one of those three persons


had given visiting card of one hotel Hey Day Jallandhar. Room was

vacated next morning at about 5.30 AM and rent of Rs. 1500/- was

paid by David A. Johnson. It would be pertinent to mention here that

there is no cross-examination of this witness by A3. Undoubtedly,

when this witness was grilled by other accused, he deposed that he

could not identify such David A. Johnson but fact remains that

prosecution possesses one very decisive and clinching evidence

suggesting that such room was booked previous night by none other

than by David A. Johnson. I am referring to the report of handwriting

expert. PW42 Sh. R.S. Rana, Assistant Government Examiner of

Questioned Documents in CFSL, Shimla examined the documents and

with respect to signatures appearing at point Q-400, he opined that

person who had signed on S-238 to S-245 had also signed point

Q-400. S-238 to S-245 are specimen handwriting of accused David A.

Johnson which were taken on 24.04.2008 by IO Sh. M.N.P. Sinha and

these specimen signatures have been collectively exhibited as Ex.

PW42/Z17. I have seen the testimony of PW40 Sh. M.N.P. Sinha and

in examination-in-chief, astonishingly, he nowhere made any

reference regarding his ever taking signatures or specimen

handwriting of A3 David A. Johnson. Prosecution also did not find any

necessity of extracting such imperative fact from his mouth but fact

remains that there does not seem to be any real quarrel in this

regard. When statement of A3 u/s 313 Cr.P.C. was recorded, he

emphatically admitted that said room was booked by him.

Undoubtedly, he also claimed that he was working for one Mr.

Sandeep and he had booked the room as he was asked in this regard

by Mr. Sandeep but fact remains that he does not dispute that such

room was booked by him and does not dispute his signatures at point


A400. Reference in this regard be made to answer given by him to

question no. 49 of statement u/s 313 Cr.P.C.

10.3 According to the case of prosecution, he was having

saving account with Connaught Place Branch of ICICI Bank. Such fact

is also not in dispute. A3 has categorically admitted that it was his

account. Account opening form has been proved as Ex. PW36/A7

which also bears his signatures as well as his photograph. I have

already noticed above that prosecution has not been able to show

that it was accused Navneet Singh who had deposited the amount in

the said bank account of A3. Fact, however, remains that substantial

amount was actually deposited in his bank account. Onus, therefore,

shifts on him to elucidate and enlighten as to who had deposited

such account in his bank account because such fact has to be

assumed within his special and exclusive knowledge. In his

statement us/ 313 Cr.P.C., he baldly claimed that such amount had

been deposited in his said bank account by Mr. Sandeep. He,

however, failed to prove and substantiate such theory about Mr.

Sandeep in any manner whatsoever. No suggestion in this regard

was put to any of the witness either. So much so, he did not examine

any witness in order to prove such fact regarding Mr. Sandeep.

10.4 According to the case of prosecution, a sum of Rs. 4.90

lacs had been deposited in his bank account. It is not a small amount

and A3 cannot be permitted to casually deny such fact and cannot

baldly blame Mr. Sandeep, a stranger to this court, for such deposit.

Thus, prosecution has been able to prove two very crucial aspects

against A3. He was the one who had booked the room at Hotel


Airport Inn. He was the one in whose bank account a sum of Rs. 4.90

lacs was transferred/deposited and such amount was towards the

illegal procurement of travel documents i.e. passport and visa and it

has already been noticed above that passports so prepared were

found to be forged passports. Undoubtedly, he himself had not filled

any application form or had not accompanied A1 to Ministry of

External Affairs (MEA) at the time of preparation of passports but by

that time A1, A2 & A3 were sharing common object. I need not

again remind myself that PW35 Sh. Surjeet Singh has categorically

deposed that A2 had met him and told him that a group was to go to

Germany in 2007 and that he could arrange any person of his choice

and amount etc. was given to A2 in August 2007.

10.5 Thus participation of A3 stands established and it is

proved that he, too, was in league with A1.

11.0 Let me now see the complicity of A1. Sh. Rakesh

Malhotra has defended A1 M. Suresh Babu and has argued that A1

has been made a sacrificial lamb and has nothing to do with the

present case. According to him, following points are required to be

seen and assessed:-

i) Whether A1 was with Rajputana Rifles or CW-1?

ii) Whether he had been assigned any job related to filling of application forms or obtaining of passports?

iii) Whether he had filled any particular in any application or in any of the passports and had pasted any photograph on the passports?

iv) Whether he was having any sort of connection with his co-accused?


v) Whether there was any conspiracy between him and his co-accused?

vi) Whether any incriminating article had been recovered from his house search?

vii) Whether there is any evidence showing that he had abused his official position?

11.1 Sh. Malhotra has taken me through the testimony of

witnesses examined by the prosecution and has contended that

prosecution has miserably failed to show any of the aforesaid fact.

11.2 I am mindful of the fact that Col. Satinder Singh has not

graced the witness box. So much so, even his statement u/s 161

Cr.P.C. was never recorded during the investigation and he was not

shown any of the application forms. I feel that prosecution

committed grave blunder with respect to such glaring omission.

Prosecution wants the Court to believe that A1 had forged the

signatures of Col. Satinder Singh. In such a situation, Col. Satinder

Singh himself was the best witness to prove such a material fact. For

utterly mysterious reasons, investigating agency, deliberately or

otherwise, did not choose to examine Col. Satinder Singh. Faced with

such illogical approach of investigating agency, let me see as to what

other senior Army officials have to offer.

11.3 PW21 Col. K.S. Ram Mohan was posted as Director CW-II

and had visited Germany along with the team of 40 personnel. He

has given narration of steps required to be taken when any such

invitation is received. I need not go into minute details about such

aspect but I would certainly hasten to add that the selection of


musicians for participation in such type of musical festival cannot be

left to the whims and fancies of lowly ranked Army official. A Lance

Naik is not in any position to have any existent say and to decide as

to who would or who should participate in such music festival and

who should not. Undoubtedly, inputs can always be taken from a

musician but to hold that he was having the final say or that he was

the deciding authority would be too fanciful to believe. According to

PW21 Col. K.S. Ram Mohan, invitation for Germany visit was received

from Indian Embassy in Germany sometime in June, 2007 and name

of one Colonel, one Lieutenant Colonel were cleared along with 40

other personnel. He deposed that he knew accused M. Suresh Babu

who was working in the office of CW-1. A1 was basically a musician

and his services were taken as and when required. He was also

shown list Ex. PW21/A and he deposed that persons mentioned at

serial no. 1 to 40 were supposed to visit Germany and names

mentioned at serial no. 43 to 52 were reserved members. He also

deposed that he along with 51 officials was to proceed to Germany

and he himself was the leader of the delegation that visited Germany

for 30.10.2007 to 07.11.2007 for participation in 13th Military Music

Festival, Berlin. He also deposed that name of M. Suresh Babu was in

the reserved list but he visited Germany in place of one Amarjeet

whose name had been deleted.

11.4 List of officials, who were supposed to visit Berlin, was

prepared. Such list is Ex. PW39/A and it purportedly bears signatures

of Col. Satinder Singh. According to prosecution, such signatures

were never put by Col. Satinder Singh. Such list was also sent to

Ministry of External Affairs for preparation of passports vide letter no.


B/42496/Germany/AG/CW-1 dated 23.10.2007 and even on such

letter D-29 (Ex. PW19/A), as per the case of prosecution, A1 had

forged the signatures of Col. Satinder Singh.

11.5 I am not able to absorb that A1 would dare to forge

signatures of Col. Satinder Singh on such letter. According to PW21

Col. K.S. Ram Mohan, this letter does not bear signatures of Col.

Satinder Singh but prosecution has failed to explicate as to what

accused M. Suresh Babu was going to drive by forging signatures of

Col. Satinder Singh on such a plain letter. After all, the list must have

been prepared and approved by the senior officers and to ensure the

participation of such military officials, in such music festival, officials

passports were urgently required.

11.6 Let me assume, for a moment, that intention of M. Suresh

Babu was other than bona fide and he might have thought of

preparing forged passports for reserved officials but prosecution has

not been able to explain as to why M. Suresh Babu would forge

signature of Col. Satinder Singh on letter Ex. PW19/A and also as to

why he would forge his signatures on all the 52 application forms.

11.7 All the application forms were shown to Col. K.S. Ram

Mohan during recording of his testimony and he, point blank, claimed

that none of the applications were bearing signatures of Col. Satinder

Singh. He also denied the authenticity of the stamp affixed on such

application forms. According to him, he is well-acquainted with the

signatures and handwriting of Col. Satinder Singh and he had seen

him writing and signing. However, as regards M. Suresh Babu, he


deposed that he did not know as to who had authorized accused M.

Suresh Babu to submit application forms for issuance of passports in

the Ministry of External Affairs. When he was shown Ex. PW19/A

which was containing an endorsement made by accused M. Suresh

Babu to the effect that he had received 51 passports and visa note

for Germany, he merely claimed that these signatures must be of

accused M. Suresh Babu supplementing that he was not much

familiar with the signatures of accused M. Suresh Babu. In his cross-

examination, he admitted that though application forms did not bear

genuine signatures of Col. Satinder Singh nor his official stamp yet

passports were issued to officials and officials had visited Germany as

well. As regards his own application, he admitted that he had filled

up his application and gave the same to accused M. Suresh Babu for

processing. There is nothing much further in his cross-examination.

11.8 PW33 Lt. Col. A.P.S. Randhawa was posted as Joint

Director with R&W Section of Army Headquarters, New Delhi.

According to him, his official passport was got prepared by Lance

Naik M. Suresh Babu i.e. A1 and according to him, backside of his

application i.e. application Ex. PW21/A4 was filled up by M. Suresh

Babu. Back portion i.e. Sr. no. 12 is meant for purpose of visit and

the country to be visited on official duty and according to specific and

categoric deposition of Lt. Col. Randhawa, such column was filled

by none other than accused M. Suresh Babu. This witness was

also shown Ex. PW19/A and he identified handwriting of A1 M. Suresh

Babu even therein. In his cross-examination, he admitted that A1

was musician with Army Band but he also used to do some

documentation work. He also deposed that he also used to see him


working in C&W Section. It was suggested to him that he had sent

some application forms for issuance of passports to Lance Naik M.

Suresh Babu at the asking of Brig. H.P.S. Bedi. This suggestion itself

indicates that accused M. Suresh Babu does not dispute that he was

given possession of application forms. According to Lt. Col.

Randhawa, C&W was a large organization in which there were

number of officers. He also admitted that he had seen M. Suresh

Babu writing while filling up the form of other persons also. He also

admitted that Col. Satinder Singh was Director of CW-1 and he was

overall in-charge of that trip and Col. K.S. Ram Mohan was the head

of delegation. He also deposed that his passport was given to

him by Lance Naik M. Suresh Babu. Such fact is unchallenged.

11.9 PW34 Girish Kumar had gone on Malaysian tour of the

Army Band and according to him, when official passports were

required for said visit, similar type of letter was prepared for MEA.

He, being Joint Director CW-1 at that time, had signed the same and

such letter and relevant list was sent to Ministry of External Affairs for

preparation of official passports. Such letter Ex. PW34/A (D81) and

letter Ex. PW19/A are similar in format. Only difference is that Ex.

PW19/A pertains to the visit of Germany and letter Ex. PW34/A

pertains to tour of Malaysia. There is allegation of forgery with

respect to Germany visit. However, even when music band was to go

to Malaysia for participation in Kulalampur International Tattoo 2007,

all the requisite formalities were carried out through A1 M. Suresh

Babu and his handwriting and signatures are there in the similar

manner on Ex. PW34/A also. Prosecution, naturally, wants to show

that for all such types of visits, duties used to be assigned to A1 M.


Suresh Babu and he used to take application forms to MEA and used

to obtain official passport from MEA. According to learned Prosecutor,

Army officials and officials of MEA were having blind faith in him as on

previous occasions also, he had obtained official passports from MEA

and, therefore, when the passports were to be prepared for Germany

visit, A1 took undue advantage of the faith reposed in him and

pasted photographs of private persons on the passports meant for

reserved officials and sold them with the help of his co-accused

persons.

11.10 I have carefully seen Ex. PW34/A as well as Ex. PW19/A

and from these two documents coupled with testimony of senior

Army officers and handwriting expert, one thing can be safely

deduced. Even if A1 was posted in Rajputana Rifles, his services

used to be taken for preparation of passports. I must admire that he

has a very neat hand and the handwriting appearing on both these

documents i.e. Ex. PW19/A and Ex. PW34/A is same and identical in

nature. In application Ex. PW19/A, there is endorsement at point Q2

to the effect that accused M. Suresh Babu had received 51 passports

and visa note for Germany. There are signatures of M. Suresh Babu

beneath such endorsement. Similar type of endorsement is found to

be there in Ex. PW34/A vide which M. Suresh Babu had received 23

official passports and one diplomatic passport on 24.08.2007 meant

for Malaysia visit. As per the report of handwriting expert,

questioned handwriting tallied with the handwriting of A1 as

appearing in specimen handwriting sheets S-1 to S-140. S-1 to S-140

are contained in D-2 (supplementary documents) and have been

collectively exhibited as Ex. PW42/Z13 and A1 to A16 are admitted


documents containing handwriting of A1 M. Suresh Babu which have

been proved as Ex. PW42/Z11. A1 to A16 are application forms which

were filled for the participation in Kualalampur Music Festival and

these contain admitted handwriting of A1 M. Suresh Babu and

according to handwriting expert, author of such specimen

handwriting and admitted documents was also responsible for the

questioned handwriting.

11.11 I would, however, lay stress on the point that no definite

opinion could be given with respect to alleged forged signatures of

Col. Satinder Singh.

11.12 It would also be useful to make mention of testimony of

PW11 Brig. H.P.S. Bedi and PW14 Col. K.S. Chadha. Name of PW11

Brig. H.P.S. Bedi figures in the charge-sheet. He has not been sent up

to face trial. In the year 2007, he was posted as Deputy Director

General (Ceremonial & Welfare Department) and he had gone to

Kualalampur, Malaysia leading delegation of Army Band Contingent

for participation in International Band Tattoo 2007. He went on a

diplomatic passport but it was later on found that he was not entitled

to such diplomatic passport. According to him, his Personal Assistant

Swapan Kumar approached accused M. Suresh Babu and A1 was

handed over filled up application and later on he was given

diplomatic passport.

11.13 There is no dispute to the fact that PW11 Brig. H.P.S. Bedi

was not entitled to diplomatic passport. According to case of

prosecution, A1 M. Suresh Babu misled him and procured diplomatic


passport for him. In this regard, to some extent, I feel that even

PW11 Brig. H.P.S. Bedi himself and his Personal Assistant are to be

blamed for the goof up. I do not find any criminality in this regard on

the part of M. Suresh Babu as PW11 Brig. H.P.S. Bedi himself had

deposed that when he asked Suresh Babu whether some application

was required for diplomatic passport, accused M. Suresh Babu

pleaded his ignorance. He also deposed that rather his Personal

Assistant Swapan Kumar had told him that he could get diplomatic

passport as he was head of delegation. This witness has also

clarified in his cross-examination that the Department of Ceremonial

Function is headed by Adjutant General and below him was Director

General (C&W) and then Additional Director General, then Deputy

Director General and then Director (Ceremonial) and then Joint

Director. He also admitted that Col. Satinder Singh was Director and

Sh. K.S. Chadha was Joint Director at the relevant time. He also

deposed that selection of names of the Army officials, who were to

participate in such music festival, used to be made by the Inspector

of the Army Band with the advice of Joint Director (Ceremonial). He

also deposed that such passports were supposed to be received by

Col. Satinder Singh or Col. K.S. Chadha.

11.14 I have also seen testimony of PW14 Col. K.S. Chadha. He

is also not directly related with the present controversy related to

Germany visit. His wife Ms. Harleen Chadha was not in Army but she

had also been provided with an official passport and according to

prosecution, it was again done by A1 M. Suresh Babu. Fact, however,

remains that such official passport was never used by her. It would

be important to mention here that even Ms. Harleen Chadha was not


sent up to face trial on the ground that there was not sufficient

evidence against her. She and Brig. H.P.S. Bedi were interrogated

during investigation as they both got passports to which they were

not entitled to and according to CBI, these passport were made

available to them by accused M. Suresh Babu. At the cost of

repetition, I would say that these two officials have nothing to do

with the Germany visit. PW14 Col. K.S. Chadha has also given

hierarchy of officials in Ceremonial Department and he also admitted

that accused M. Suresh Babu was a musician and was posted at

Rajputana Rifles and according to him, list of officials going abroad

used to be approved by Director General on the recommendation of

Deputy Director General (Ceremonial).

11.15 From the testimony on record, it cannot be said that

accused M. Suresh Babu was never entrusted with any job related to

filling up of application forms or for preparation of passports. On

previous such types of visits, his services were utilized.

11.16 With respect to the visit of Germany also, he was asked

to coordinate. Naturally, names were not finalized by him but there

does not seem to be any difficulty in holding that he had filled up

applications of such officials. Such act, by itself, did not amount to

any illegal or wrong act and was not absurd either. However, it is not

made clear by the prosecution as to why he would forge signatures of

Col. Satinder Singh on all the applications forms and also on the

forwarding letter sent to MEA for preparation of official passports. It

was an official invitation and there was political clearance from the

concerned quarter and in any eventuality, such list had to be


dispatched to MEA for issuance of official passports. Col. Satinder

Singh has not graced the witness box and the report of handwriting

expert does not give any definite opinion as to who had forged the

signatures of Col. Satinder Singh and in such a situation, it cannot be

automatically inferred that merely because these applications were

brought to MEA by M. Suresh Babu, he and only he would have forged

the signatures of Col. Satinder Singh.

11.17 He had come at the office of MEA and in this regard

testimony PW19 Surjeet Singh is of vital importance. He was working

as Section Officer at Patiala House in PV-II Section, Ministry of

External Affairs, New Delhi. He has given procedure of issuance of

official/diplomatic passport. According to him, whenever there used

to be large number of applications for the issuance of passport for

the officials of Defence Ministry then officials of Defence Ministry also

used to come to their office for helping in preparation of passports of

the officials of their department. He was shown letter Ex. PW19/A

and he admitted that such letter was received for issuance of

passports and he had endorsed issuance of 30 passports and signed

also and then such letter was given to dealing clerk i.e. Smt. Suresh

Rani Sharma and 30 blank passports were handed over to defence

officials for preparing the passports. In the next breath, he deposed

that in the present case, probably such blank passports were given to

accused M. Suresh Babu. After the passports were filled up there,

such passports were checked by their staff and then those were

produced before him for signatures and he had signed those

passports. He admitted that Brig. H.P.S. Bedi was not entitled to

diplomatic passport and to that effect, there was error on his part.


He claimed that there was no specific instruction to hand over blank

passport to staff of Defence Ministry for filling up of passport but such

practice was there for last many years as Army officials were known

for their integrity. He also admitted that identity cards were also

required for issuance of passports but on some occasions, Army

officials did not attach identity cards along with the application forms.

In the present case, no identity card was attached with the

application forms. He also admitted that photographs, which are

attached with the application forms, are also required to be attested

by gazette officer. He admitted that he had allowed applications for

issuance of 30 passports that day and he could not say whether other

20 passports were issued or not. Defence has attempted to dig out a

huge mileage out of the aforesaid fact. According to defence

counsel, he had allowed only 30 passports and in such a situation,

there was no occasion for accused M. Suresh Babu to have collected

51 passports. However, he has forgotten the endorsement made by

accused M. Suresh Babu himself whereby he acknowledged having

received 51 passports.

11.18 PW18 Smt. Suresh Rani entered into witness box but here

testimony remained incomplete and she was partly examined and

was never produced thereafter and, therefore, her part examination

cannot be read.

11.19 According to the case of prosecution, applications for

procuring official passports were filled by A1 and in order to drive

home said vital fact, CBI is heavily banking upon the report GEQD.

However, before adverting to such report, I would like to say that


various other Army officials have not been able to positively confirm

such fact. Reference be made to the testimony of PW33 Col. A.P.S.

Randhawa and of PW34 Girish Kumar. PW33 Col. A.P.S. Randhawa

deposed that front portion of the application had been filled by him in

his own hand but backside of the application appeared to have been

filled by Lance Naik M. Suresh Babu. Similarly, PW34 Girish Kumar

has also deposed that handwriting on letter Ex. PW34/A (D-81)

appeared to be of accused M. Suresh Babu. These witnesses were

not very categoric and positive about handwriting. There are several

other Army officials who have also tried to smash up the prosecution

case by claiming that these application forms have not been filled by

A1 at all. Reference be made to the testimony PW20 Vijay Mohan,

PW22 Sh. A.K. Barua and PW24 Gagan Lama. There are few

witnesses who are not aware as to who had filled such application

forms.

11.20 As far as PW29 Ranjeet Kumar is concerned, he has

categorically deposed before the Court that application for issuance

of diplomatic/official passport i.e. D-121 (Ex. PW29/A) was bearing his

signatures and his photograph and such application for the issuance

of official passport was got signed from him by accused M. Suresh

Babu and its columns were filled in by accused M. Suresh Babu.

There is no challenge to such deposition. Portion, which has

been alleged to be written by accused M. Suresh Babu in said

application D-121 has been marked as Q266 and Q269 and as per

categoric report of handwriting expert, person who had written Q-266

and Q269 had also written S-1 to S-140 and A1 to A16. Thus, these

handwritings categorically match with the handwriting of A1 M.


Suresh Babu.

11.21 Sh. R.S. Rana has been working as Assistant GEQD in

CFSL Unit of Shimla for last more than 17 years and defence counsels

have made futile and ineffective attempt to attack his report by

claiming that Sh. Rana was not expert in the field of examination of

handwritings. I have seen his deposition and considering the fact

that he is posted in CFSL Unit as Assistant GEQD for more than 17

years and that in his career, he has examined thousands of

documents, his expertise on the subject is beyond challenge and

cannot be questioned.

11.22 There does not seem to be any dispute regarding his

handwriting being there on the application for official passports with

respect to the previous visit of music band to Malaysia. PW34 Girish

Kumar has categorically deposed that for Malaysia Trip which was

from 27.08.2007 to 10.09.2007, 24 total persons had been selected

and visited Malaysia. Record pertaining to said Malaysia visit has

also been placed on record and the letter for issuance of passport

was written by none other than Sh. Girish Kumar and accused M.

Suresh Babu was the person who had been entrusted with the job of

collection of passports and he had gone to the office of Ministry of

External Affairs and had obtained one diplomatic passport and 23

official passports for said Malaysia visit of Army Band.

11.23 I have already made reference to the endorsement made

by accused M. Suresh Babu regarding receiving of passport on Ex.

PW34/A as well as on Ex. PW19/A. I have also seen handwriting


appearing at portion Q1 and Q2 of Ex. PW19/A and it needs no

discerning eyes to note that handwriting style is distinctly evidently

similar and even the expert had come to the same opinion and has

opined that author of these questioned handwriting as well were by

the person who had written specimen handwriting S-1 to S-140 and

A1 to A16. S-1 to S-140 and A1 to A16 are handwriting of A1 only.

S-1 to S-140 are contained in D-2 (supplementary list) and have been

collectively exhibited as Ex. PW42/Z13. A1 to A 16 have been

collectively exhibited as Ex. PW42/Z11 and these are the application

forms which were also filled by accused while music band had gone

to Malaysia to participate in International Tattoo in 2007. Thus, it

becomes apparent that applications were filled by accused M. Suresh

Babu i.e. A1. It also becomes evident that when the passports were

prepared by MEA officials, all such 51 passports were collected by

none other than A1 from the office of MEA. Reference be made to

Ex. PW19/A where at portion Q2 accused M. Suresh Babu made

endorsement regarding receiving of 51 passports and visa note for

Germany. This happens to be the most crucial fact of the case. It

clearly indicates that accused had submitted applications before

MEA. It also seems to me that he had helped officials of MEA in

preparing of passport as the handwriting in the passports is also

found to be similar. Report of Handwriting Expert also confirms the

same.

11.24 Undoubtedly, there is no material before me that it was

accused M. Suresh Babu who had forged the signatures of Col.

Satinder Singh. Even the report of handwriting expert does not come

to the rescue of prosecution in this regard. However, I cannot lose


sight of the fact that it was A1 only who had produced these

applications before the officials of MEA. Bare glimpse of such

applications would show that on some of the applications,

photographs were of some other private persons and not of the

concerned Army officials. A1 was integral member of Army Band and

he had gone abroad on previous Army concerts and it would be

hardly digestible that he would not be knowing such a vital fact more

so when he himself was assisting the official of MEA in preparing

passports. If his intention was not malafide, he would have

immediately reacted and would have brought to the knowledge of his

superior that something was suspicious and shady. He, however, did

not retort at all and rather very calmly and coolly collected all the 51

passports. After he came into possession of such 51 passports, onus

was on to him to have shown that he had handed over these 51

passports to his superiors or deposited the same with the office of

Army. Nothing of that sort had been claimed by him and five of such

passports, which were carrying photographs of private persons, were

recovered from the possession of his co-accused on 01.10.2007. This

clearly reveals that he himself was part of the conspiracy.

Undoubtedly, officials of MEA were also at fault. They displayed

complete laxity in preparing passports and virtually allowed an

outsider to fill up the passports. Even if workload was heavy, it was

absolutely wrong on their part to have entrusted the job to an

outsider. When PW19 entered into witness box, he was shown one

official passport (D-127), such passport was bearing stamp of Ministry

of External Affairs but it was blank and unsigned one. Such passport

Ex. PW19/DA is one of the documents relied upon by the prosecution.

According to PW19, it was never seized by CBI from their office.


PW19 came up with an unexpected and startling answer and stated

that perhaps M. Suresh Babu had stolen such passport from office. If

this was really so, MEA officials should have lodged some

report/complaint regarding theft of passport. Nothing of that sort was

done and in order to hide acts of their own negligence, officials of

Ministry of External Affairs are trying to blame accused M. Suresh

Babu by claiming that he might have stolen the passport which was

never ever the case of prosecution.

11.25 It is also not comprehensible as to why CBI did not try to

interrogate accused immediately when the case had been assigned

to CBI without any delay. CBI rather allowed A1 to remain in custody

of Army for approximately one year and did not even formally arrest

him when the challan was prepared & filed. CBI should have made

thorough interrogation from this prime accused at the earliest

available opportunity. According to case of prosecution and Army,

house of accused M. Suresh Babu was searched and during such

search, Army had recovered 44 passports. This is really intriguing as

to why at the time of filing of supplementary charge-sheet,

investigating agency concluded that no criminality could be

attributed from mere recovery of passports from his house. It is also

not made clear as to why all such 44 passports were never produced

before the Court. As I have already noticed above, such recovery was

effected by Army officials under the supervision of Major Deepak

Srivastava. Major Deepak Srivastava has not graced the witness box.

PW26 Sub. Mohd. Aslam Ansari was examined by the CBI and

according to him on 11.11.2007 on the direction of Major Deepak

Srivastava, he went to the house of accused M. Suresh Babu and


accused M. Suresh Babu was in custody and he also accompanied

them and then house of accused M. Suresh Babu was searched and

relevant documents collected from search were brought to Raj Rifle

Centre, Delhi Cantt. He deposed that on 14.11.2007 house of

accused M. Suresh Babu was searched again. I take a little pause

here. This is all what he has to say in his examination-in-chief. In his

entire such examination, he did not bother to give the details of the

documents which had been recovered from the search. He failed to

assign any reason as to why when search had already taken place on

11.11.2007, there was requirement of searching the house all over

again on 14.11.2007. After 11.11.2007, house of accused M. Suresh

was locked and the keys were deposited with the Quarter Guard. In

such a situation, second search becomes meaningless because the

things were under the control of Army officials and there was every

opportunity of planting any incriminating article. Thus, search dated

11.11.2007 and 14.11.2007 is found shrouded with mystery. Major

Deepak Srivastava has not graced the witness box and there is no

explanation as to why second search was done. Moreover, even as

per the case of CBI, there was no criminality emanating from the

recovery of such passports.

11.26 I have seen the deposition of sanctioning authorities.

PW38 R. Swaminathan was posted as Joint Secretary (Counselor

Passport & Visa) and he was competent authority to grant sanction

with respect to prosecution of accused persons for their prosecution

under relevant sections of Passports Act. Such sanction order dated

12.05.2008 has been proved as Ex. PW38/A. Sanction of A1 M.

Suresh Babu for prosecution under Prevention of Corruption Act was


granted by PW43 Brig. S.D. Nair and he has proved the sanction as

Ex. PW41/B. He has deposed that after careful perusal of entire

record including statements of witnesses, Army Headquarter Report,

Court of Inquiry, house search report, statements recorded by CBI

and on the basis of allegations and circumstances, he accorded such

sanction for prosecution of accused M. Suresh Babu. It has been

argued by defence that any case instituted without proper sanction

would fail as it amounts to manifest defect in the prosecution. It has

also been argued that there has to be proper application of mind.

Reliance has been placed upon MOHD. IQBAL AHMED VS. STATE

OF A.P. AIR 1979 SC 677 and MAJOR SOM NATH VS. UNION OF

INDIA AIR 1971 SC 1910. There is no dispute regarding the

established principle of law but fact remains that I have not been able

to find out any material which may suggest that sanction was given

by any incompetent authority or without application of mind.

Discussion of the matter by sanctioning authority with legal

luminaries, before according sanction, will instead show that

sanctioning authority took the task with utmost seriousness. It rather

reflects extra application of mind not non-application.

11.27 PW40 Nripendra Mohan Prasad Sinha was entrusted with

investigation of this case. He has also deposed that accused M.

Suresh Babu was working as Lance Naik in Welfare and Ceremonial

Directorate and was responsible for obtaining applications from the

nominated officials for sending the same to MEA and he had taken

such applications to MEA. He has also deposed that accused M.

Suresh Babu, using his good office, obtained passports from MEA and

filled in the details in such passports in his own handwriting and


pasted, in some of the passports, photographs of other accused who

were not members of Army Band and received 51 passports from

MEA. He has also deposed that during investigation, he had seized

all such five passports i.e. Ex. PW1/B, Ex. PW2/C, Ex. PW3/B, Ex.

PW4/B and Ex. PW5/B. He has also given other vivid details of

prosecution case and has proved the relevant documents as well. In

his cross-examination, he admitted that as far as accused persons,

other than A1 M. Suresh Babu, were concerned, they had neither

prepared the passports nor pasted photographs on such passports.

He has also admitted that there was no evidence to show that A4

and A7 had met A1 or A2. He claimed in his cross-examination that

five separate complaints were lodged by Immigration Authorities

against five accused persons and Boarding Passes along with

respective passports were seized and such documents were

forwarded to IGI Police Station and, therefore, there was no separate

seizure memo prepared by Delhi Police showing seizure of passports.

He also admitted that he did not seize any baggage tag during

investigation and according to him, all the five imposters were

apprehended at the Immigration Counter. Undoubtedly, he admitted

that Brig. H.P.S. Bedi was not eligible to have diplomatic passport and

similarly Ms. Harleen Chadha was not eligible to have official passport

but he denied that his investigation was unfair and full of vested

interests. He also admitted that Col. Satinder Singh was in-charge of

CW-I and Col. K.S. Chadha was subordinate to Col. Satinder Singh and

he was also responsible for supervision of foreign visits by the Army

Band. He claimed that Brig. H.P.S. Bedi, Col. Satinder Singh and Lt.

Col. K.S. Chadha were supervising the visit with active assistance of

accused M. Suresh Babu. He also claimed in cross-examination that


list of participants was prepared by accused M. Suresh Babu as to

who was to go and who would not. However, I feel that he has

stretched himself too far and too away. I have already noticed above

that accused M. Suresh Babu could have only given suggestion but

he was not the deciding authority in this regard. In his cross-

examination, he also made reference to the statement of PW Suresh

Rani Sharma who had claimed that 5-6 Army personnel used to come

to office of MEA and used to fill up passports and used to paste the

photographs. He claimed that he tried to ascertain the names of

such other officials but could come to know about the name of M.

Suresh Babu only and could not pinpoint anyone other. Merely

because investigating agency could not lay its hands upon any such

other Army official does not mean that even M. Suresh Babu should

be permitted to go scot free. From the testimony on record, it

becomes very much perceptible that he was the one who had filled

up the application forms and had taken the same to the office of MEA

and even collected 51 passports. He cannot wriggle out of his own

endorsement made by him in this regard.

11.28 PW41 Insp. Anand Sarup had also done part investigation

and had filed supplementary charge-sheet after obtaining sanction.

He has also deposed that he had seized personal belonging

recovered from the house search of accused M. Suresh Babu which

were already recovered by Army officials and these were seized by

him vide memo Ex. PW41/C. These were handed over to him by

Major Deepak Srivastava. He had seized relevant files from the office

of MEA vide memo Ex. PW41/D. He had also collected the relevant

documents pertaining to ICICI Bank.


11.29 It is also important to mention that Court of Inquiry

proceedings were also initiated by Army Authorities against A1 but

for reason best known to the investigating agency, the outcome of

such proceedings was not brought to the knowledge of the Court.

However, when I searched Internet and particularly the website of

Armed Forces Tribunal, I came across one judgment dated 07.05.2012

passed by Armed Forces Tribunal Principal Bench, New Delhi in OA

No. 729/2010 which reveals that by order dated 26.11.2010 the

services of accused M. Suresh Babu were dispensed with u/s 20 (3) of

Army Act read with Rule 17 of Army Rules. Such order was

challenged by accused M. Suresh Babu but Tribunal dismissed his

petition.

11.30 Keeping in mind the entire material available on record

and in view of my foregoing discussion, I am of the opinion that

complicity of A1 M. Suresh Babu stands proved very clearly.

Prosecution has been able to prove following facts qua A1 M. Suresh

Babu.

(i) He was in Rajputana Rifles but his services were

used to be availed by Directorate of CW-1 as well.

(ii) Being musician, he used to participate in Army

Band and had, on previous occasions also, gone abroad with Army

Band.

(iii) Army officials had faith in him and on previous

occasions also when Army Band was to go to Malaysia and Chile, task

was handed over to A1 M. Suresh Babu to fill up the application


forms of the selected Army officials and to take such forms to the

office of MEA and to obtain the passports from MEA.

(iv) With respect to participation in Army Band in 13th

Berlin Military Band Festival, 42 names were shortlisted besides 10

reserved officials. A1 filled up application forms for obtaining official

passports and the purpose of visit on all applications in serial no. 12

are found to be filled by him.

(v) He was also given the task of taking all such filled

applications to MEA for obtaining official passports. He met officials

of MEA in their office situated at Patiala House Complex and since

MEA officials also had trust in him, he was allowed to fill up relevant

details even in the passports.

(vi) At that time, he was possessing all the application

forms including applications Ex. PW1/A, Ex. PW2/A, Ex. PW3/A, Ex.

PW4/A and Ex. PW5/A. All these applications are also found to be

filled by none other than A1 M. Suresh Babu. All these were

containing photographs of private persons and this automatically

indicates that A1 was even possessing photographs of such five

private persons which he got through A2 and A3. Such photographs

were pasted in the passports and he even filled up the relevant

columns in the passports as well without any murmur. He collected

all such 51 passports and visa note for Germany from office of MEA

on 25.10.2007 by making endorsement at point Q-2 in Ex. PW19/A.

Official passports were also got prepared for 10 reserved officials and

out of these 10 reserved officials, five passports were having

photographs of private persons who are also accused herein and

these five passports were ultimately recovered from the possession

of five accused i.e. A2 & A5 to A8.


(vii) He never deposited these passports meant for

reserved officials with office of Army or with CW-1. Remaining five

such passports were also recovered from his house search. It clearly

indicates his malafide intention to use the official passports meant for

reserved officials.

(viii) Being in Army and being integral member of Army

Band, he would have immediately come to know that the

photographs on the passports or for that matter on the application

forms were not of the concerned Army officials but despite that he

did not bring any such fact to the notice of his superiors which in

itself suggests that he misused the opportunity and ditched the faith

reposed in him by the Army officials and MEA officials.

(ix) Except A1 no other accused was in Army. Only A1

knew that Army Band had been invited to participate in Berlin

Festival. PW35 Surjit Singh has categorically deposed that A2 had

told him that a group was to go to Germany and A2 had also told him

that one Suresh Babu was also working with him. This clearly

indicates that A1 had joined A2 in order to execute his plan and

similarly A3 was also made part of conspiracy who accordingly

booked a room in hotel Airport Inn and stayed there with other

accused and even money had been transferred in his account of ICICI

Bank for facilitating illegal human trafficking.

11.31 A1 was public servant. He got occasion to possess blank

passports and to fill them being a public servant. He abused his

official position and obtained pecuniary advantage for him and his co-

accused and made available passports i.e. valuable things for his


other co-accused i.e. A2 and A5 to A8.

11.32 Purpose behind making conspiracy a crime is to curb

effusive power to do harm by acting in combination. The

encouragement and support which co-conspirators give to one

another rendering object achievable which, if left to individual effort,

would have been unattainable. I need not remind myself that

conspiracy is hatched in secrecy and on most of the occasions, Court

is compelled to draw inference with respect to hatching of criminal

conspiracy. It is not always possible to have pinpointed, precise and

tangible evidence suggesting conspiracy. It has to be drawn together

from facts and attendant circumstances. The evidence led before the

Court clearly indicates that A1, A2 & A3 were part of the larger

conspiracy. The very agreement is the ingredient of the offence. It is

not necessary that all the conspirators must know each and every

detail of the conspiracy as long as they are co-participators in the

main object of the conspiracy. There may be so many devices and

techniques adopted to achieve the common goal of the conspiracy

and there may be division of performances in the chain of actions

with one common object to achieve the real end of which every

collaborator must be aware and in which each one of them must be

interested. There must be unity of object or purpose but there may

be plurality of means sometimes even unknown to one another,

amongst the conspirators. In achieving the goal several acts may be

committed by some of the conspirators even unknown to the others.

The only relevant factor is that all means adopted and illegal acts

done must be and purported to be in furtherance of the object of the

conspiracy. In Mohd. Khalid vs State Of West Bengal 2002 (2)


ALD Cri 610, it has been observed as under:-

“Privacy and secrecy are more characteristics of a conspiracy,

than of a loud discussion in an elevated place open to public

view. Direct evidence in proof of a conspiracy is seldom

available, offence of conspiracy can be proved by either direct

or circumstantial evidence. It is not always possible to give

affirmative evidence about the date of the formation of the

criminal conspiracy, about the persons who took part in the

formation of the conspiracy, about the object, with the

objectors set before themselves as the object of conspiracy,

and about the manner in which the object of conspiracy is to be

carried out, all this is necessarily a matter of inference.

12.0 Before concluding the matter, I would certainly

comment that investigation has been found wanting on

following points:-

i. CBI has not even attempted to give any reason much less a

plausible one as to why Col. Satinder Singh was not joined in

investigation. After all, he was the one whose signature had

been forged. Curiously, during investigation, he was not

confronted with such alleged signatures. He should have

positively denied such signatures to be his signatures. CBI left

everything for deriving inference. It took specimen signatures

of Col. Satinder Singh but that alone was not sufficient. Court

wanted to hear from horse’s mouth but for fanciful reason, this

gentleman has not been cited as witness. I called for case diary

but failed to find any reference about col. Satinder Singh even


there. Undeniably, court has ample powers and could have

called him as court witness. But, it was felt that at the fag end

of trial, it really would not have served the real purpose. To be

candid, he should have come in open all by himself during

investigation instead of shying away. He was heading CW-1. He

was the one who must have finalized and cleared the names of

all musicians. He was, if truth be told, accountable to

some extent. Fact, however, remains that even if I had called

him, he would have very conveniently denied his signing

anywhere. CBI shirked from its responsibility and failed to

question him when it mattered most.

ii. Director, CBI is overall Incharge and has abundant powers to

supervise the entire machinery. He cannot work as a mute

spectator and should definitely intervene if investigation is

below par but he should not dictate any further.

iii. Complete list of Band Members, who left India and who

returned from Berlin has not been placed on record. Who

knows there might be a person or persons who travelled

as Musician to Berlin but never returned? Same stands

true for visit of Malaysia and Chile. Passports of all the

persons who visited Berlin for said festival should have been

seized. At least, photocopies should have been placed on

record. It would have shown whether all other passports were

filled in the hands of A1 or someone else. CBI failed to

investigate properly in this regard and rather some of the

seized passports were immediately released.


iv. As per PW 29 Ranjeet Kumar, he had visited Germany. But he

also claims that initially, he was sent back by IGI Airport as

there was some defect in his passport. Nobody knows as to

what type of defect is he referring to? Interestingly, his

passport was allegedly recovered from house search of A1 but

such passport does not show that it was used for travelling to

Germany at all. This is completely absurd. This would rather

suggest that he was having two passports because, as per

CBI’s own case, he had visited Germany and participated in

Berlin Festival. One on record does not bear any visa stamp at

all. In such a confusing scenario, CBI should have placed on

record all the passports used or copies thereof.

v. Prosecution has not thrown light as to why A1 would commit

forgery with respect to all 51 applications. If I have understood

the case of CBI properly, his intention was to misuse the

passports meant for reserved members. But CBI has not been

able to answer as to why A1 allegedly forged signatures of Col.

Satinder Singh on all 51 applications. No necessity was felt to

investigate the said point.

vi. In such type of matters, there has to be complete file with all

the relevant notings. Such file, from Army Headquarter, has not

been collected by CBI. Court does not know why? Such file

would have shown as to who was calling the shots?

vii. Any application seeking passport is required to be made in


duplicate. Nobody knows where that other set is? CBI also did

not make any endeavour to note that for such type of

applications meant for official passports, copy of identity card

and attested photograph are also required to be submitted. No

investigation was made on that line either. File of MEA with

complete notings was also never seized or produced before the

court.

viii. Case was quickly entrusted to CBI, but despite that CBI did not

think it prudent to at least formally arrest and interrogate A1 in

the present matter. As per chargesheet, he was never arrested

in the present matter till filing of chargesheet though he was in

custody of Army. In such a sensitive matter, it was very much

required that his version was got ascertained as early as

possible. Nothing of that sort has happened. His disclosure is

also not there.

ix. No attempt was made to ascertain the role of names appearing

on Pay-in-slips of ICICI Bank. It was not attempted to ascertain

as to who filled those slips.

x. Customer copies of such Pay-in-slips of ICICI Bank were seized

from Kulwinder Singh, advocate. These were very important

documents but CBI took those very nonchalantly. So much so, it

did not even record statement of Kulwinder Singh to the effect

as to how he came into possession of same? A very crucial

piece of evidence went begging, courtesy CBI.


xi. 44 passports were allegedly recovered from house of A1. No

reason has been assigned as to why most of those passports

were hurriedly released and not made part of challan.

Surprisingly as per supplementary challan, no criminality could

be attributed merely because of such recovery.

xii. Why no action was proposed against MEA officials who were

apparently very much lax and negligent.

xiii. No effort was made to ascertain as to who filled the Departure

Cards at IGI Airport or the alleged Boarding Passes? No light

was thrown regarding boarding passes either.

xiv) Harleen Chadha got official passport whereas she was civilian.

Unnecessarily, accused Suresh Babu has been made liable for

her getting such passport whereas when list for visit to

Malaysia was finalized, she was shown Lt. Col. Army number,

meant for her, was also displayed in the list. She was also

shown in the rank of Joint Director. Naturally, this could not

have been done by A1 at all. PW34 Sh. Girish Kumar, the

then Jt. Director CW-1 was responsible for preparation

of list. He had signed the list as well as application form

of Harleen. Resolute investigation could have nailed

down actual culprit for said lapse.

12.1 Faulty investigation does not robotically mean that entire

case has to be consigned to dustbin. Defective investigation cannot

become a basis of acquittal and it becomes the duty of the Court, in


such a situation, to make the investigating agency wiser instead of

letting the accused off the hook.

12.2 The conduct of Investigating Agency should not stand on

the way of evaluating the evidence in finding out the truth and if the

material on record is otherwise realistic and ingenuous then such

pedestrian investigation should not matter much as otherwise there

would be failure in delivering substantial justice. In the case of

imperfect investigation, the Court has to be circumspect in evaluating

the evidence. But it would not be right in acquitting an accused

person solely on account of the defect as that would tantamount to

playing into the hands of the Investigating Officer if the investigation

is designedly defective . Reference, in this regard, be made to RAM

BALI VS. STATE OF UP 2004 CRI.L.J. 2490 and also to KARNEL

SINGH V. STATE OF M.P. (1995 (5) SCC 518). Here, I find that

investigation was defective but, I don’t find the omission to be

motivated or deliberate.

12.3 In the case in hand, lapse might be unintentional and,

therefore, investigating agency is warned in this regard and I express

my discontentment on record.

CONCLUSION

13.0 Thus, A1 is held guilty for committing offences

punishable u/s 120-B read with Section

419/420/465/467/468/471 IPC and 12 of Passports Act and

Section 13 (2)/13 (1) (d) of Prevention of Corruption Act.

However, I would certainly like to say that it does not stand proved


that he had impersonated Col. Satinder Singh or that he himself had

forged the signatures of Col. Satinder Singh. He conspired with A2 &

A3. Bogus passengers were got arranged in terms of conspiracy. A1

cheated MEA authorities and obtained passport from then by

intentionally and deliberately furnishing incorrect particulars. He is

also held guilty for all the aforesaid offences individually

excepting sec 419 IPC.

13.1 Similarly, his accomplice A2 & A3 are also held

guilty for offences punishable u/s 120-B read with Section

419/420/465/467/468/471 IPC and 12 of Passports Act read

with Section 13 (2)/13 (1) (d) of Prevention of Corruption Act.

They are also held guilty for said offences individually barring

Section 419 IPC and sec 13 (2)/13 (1) (d) of PC Act. It has,

however, already been held that A2 was present at Airport

and was actually possessing forged passport and used the

same as well and for that he has been held liable for offences

u/s 419/420/471 IPC and u/s 12 Passports Act.

13.2 A5 to A8 are, individually, held guilty and

convicted u/s 419, 420 and u/s 471 IPC as well as u/s 12 of

Passports Act. They are not found to be part of any

conspiracy.

13.3 A4 is acquitted of all charges. Bail bonds of A4 are

cancelled. His surety stands discharged.


14.0 Case be now listed for arguments on sentence qua

convicts.

Announced in Open Court

July 13, 2012 (MANOJ JAIN) Special Judge (PC Act Cases) (CBI) South District: Saket Courts: New Delhi


CC No. 46/2011CBI Vs. M. Suresh Babu etc.

Tuesday, July 17 2012

Present: Sh. Jagbir Singh & Sh. Shiv Charan Sharma, learned Public Prosecutors for CBI.

Convict M. Suresh Babu in person with counsel Sh. Rakesh Malhotra.

Convict David A. Johnson & Nagarajan @ Raja in person with counsel Sh. Pandey.

Convict Rajender Singh, Gurdev Singh and Gurjant Singh in person with counsel Sh. Paramjeet Singh.

Convict Varinder Singh in person with counsel Sh. Kulwinder Singh.

(A-4 Navneet Singh has already been acquitted).

1 Heard arguments on sentence.

2 Learned PP has contended that all the convicts are required to

be dealt with stern hand and should be meted out harsh punishment.

According to him, convict M. Suresh Babu has shown audacity to defame

entire Army by abusing his official capacity and by making forged official

passports available to private persons. He also states that other convicts also

do not deserve any mercy.

3 On the other hand, Sh. Malhotra has prayed that convict M.

Suresh Babu be given a chance to reform himself. He has reiterated that he

is victim of circumstances and has been made scapegoat by senior Army

officials. He has also contended that he remained behind the bars for

approximately 26 months including one year when he was in the custody of


Army authorities. It has also been argued that he has a wife and five year old

daughter who are totally dependent upon him. He has also lost his job and he

should be given a chance of rehabilitate himself.

4 Sh. Pandey has prayed for taking lenient view qua convict David

A. Johnson and Nagarajan @ Raja. As far as convict Nagarajan is

concerned, it has been argued that he remained behind the bars for eight

months and 19 days and his mother is eighty years old and his entire family is

dependent upon him. As regards convict David A. Johnson, he remained in

jail for 90 days and he has a sister who is physically and mentally challenged

and his parents and family are dependent upon him. It has also been argued

that they never misused liberty of bail during the trial either.

5 Sh. Paramjeet Singh, counsel for convicts Rajender Singh,

Gurdev Singh and Gurjant Singh has prayed that all these three convicts

Rajender Singh, Gurdev Singh and Gurjant Singh have learnt a big lesson of

their life. According to him, they are also, actually, the victims as they merely

wanted to go abroad in search of employment and had no intention to travel

of any forged document. Sh. Kulwinder Singh has also raised similar

contentions for convict Varinder Singh.

6 I have given my thoughtful consideration to the rival contentions

and carefully perused the entire material available on record.

7 As far as convicts Rajender Singh, Gurdev Singh, Varinder

Singh and Gurjant Singh are concerned, I am conscious of the fact that they

only wanted to go abroad and they were least bothered as to how such travel

documents were made available to them. They are not found part of criminal

conspiracy either. To some extent, they can also be called victims though fact


remains that they are themselves to be squarely blamed as they

impersonated and knowingly used forged official passports for leaving

country. They were, however, nabbed at the Airport itself. I am told that they

all except convict Varinder Singh have spent around two months behind the

bars during investigation. As far as convict Varinder Singh is concerned, he

spent two weeks in jail. Since, he was found suffering from spinal injury, he

was granted exemption from time to time during the trial as well.

8 However, as far as convict Nagarajan @ Raja is concerned, not

only did he try to travel on forged official passport but was also a key player in

the larger conspiracy.

9 Convict David A. Johnson is found to be the apparent

beneficiary as the money had been transferred in his bank account and he

was also instrumental in booking accommodation.

10 As far as convict M. Suresh Babu is concerned, he has tried to

smash and smear the good image of Army. He was the one who had got the

official passports prepared and received such official passports from MEA

and, therefore, it was his primary duty to hand over these official passports to

the Army authority. However, his intention was other than bonafide and

wanted to send private persons abroad through such official passports. I,

however, cannot lose sight of the fact that there is no instance of his previous

involvement of any nature whatsoever and his services have already been

dispensed with u/s 20 (3) Army Act.

11 Justice demands that courts should impose punishment befitting

the crime so that the courts reflect public abhorrence of the crime. But, in its

over-zealousness, court is not supposed to get swayed away. It has to be


wary of the rights of convict and then to assess whether to award retributive

or deterrent sentence.

12 The principle of proportion between the crime and the

punishment is the principle of ‘just deserts. For deciding just and appropriate

sentence, the aggravating and mitigating factors and circumstances in which

the offence has been committed are to be delicately balanced in a

dispassionate manner. Such act of balancing is indeed a difficult task as there

exists no straitjacket formula furnishing foolproof criterion to weigh up just and

appropriate punishment as every criminal case has its own peculiarity.

13 Keeping in mind overall facts and circumstances of the case, I

sentence convicts Rajender Singh, Gurdev Singh, Gurjant Singh and Varinder

Singh as under:

(i) For offence u/s 419 IPC, they are sentenced to the period already undergone by them and fined Rs. 5000/- in default thereof SI for a period of one month.

(ii) For offence u/s 420 IPC, they are sentenced to the period already undergone by them and fined Rs. 6000/- in default thereof SI for a period of one month.

(iii) For offence u/s 471 IPC, they are sentenced to the period already undergone by them and fined Rs. 5000/- in default thereof SI for a period of one month.

(iv) For offence u/s 12 of Passports Act, they are sentenced to the period already undergone by them and fined Rs. 5000/- in default thereof SI for a period of one month.

14 Convict M. Suresh Babu, Nagarajan Israel @ Raja and David A.

Johnson are sentenced as under:

(i) For offence u/s 419 r/w section 120B IPC, each of them is


sentenced to SI for one year and fined Rs. 5000/- each in default thereof further SI for a period of three months.

(ii) For offence u/s 420 r/w section 120B IPC, each of them is sentenced to SI for three years and fined Rs. 5000/- each in default thereof further SI for a period of three months.

(iii) For offence u/s 465 r/w section 120B IPC, each of them is sentenced to SI for one year and fined Rs. 3000/- each in default thereof further SI for a period of two months. (iv) For offence u/s 467 r/w section 120B IPC, each of them is sentenced to SI for three years and fined Rs. 5000/- each in default thereof further SI for a period of three months.

(v) For offence u/s 468 r/w section 120B IPC, each of them is sentenced to SI for three years and fined Rs. 5000/- each in default thereof further SI for a period of three months.

(vi) For offence u/s 471 r/w section 120B IPC, each of them is sentenced to SI for one year and fined Rs. 3000/- each in default thereof further SI for a period of two months.

(vii) For offence u/s 12 Passports Act r/w section 120B IPC, each of them is sentenced to SI for two years and fined Rs. 5000/- each in default thereof further SI for a period of three months.

(viii) For offence u/s 13(2)/13 (1) (d) PC Act r/w section 120B IPC, each of them is sentenced to SI for three year and fined Rs. 25,000/- in default thereof further SI for a period of one year.

15 Convict M. Suresh Babu is individually sentenced as under:

(i) For offence u/s 420, he is sentenced to SI for three years and fined Rs. 5000/- in default thereof further SI for a period of three months.

(ii) For offence u/s 465 IPC, he sentenced to SI for one year and fined Rs. 3000/- in default thereof further SI for a period of two months.


(iii) For offence u/s 467 IPC, he is sentenced to SI for three years and fined Rs. 5000/- in default thereof further SI for a period of three months.

(iv) For offence u/s 468 IPC, he is sentenced to SI for three years and fined Rs. 5000/- in default thereof further SI for a period of three months.

(v) For offence u/s 471 IPC, he is sentenced to SI for one year and fined Rs. 3000/- in default thereof further SI for a period of two months.

(vi) For offence u/s 12 Passports Act, he is sentenced to SI for two years and fined Rs. 5000/- in default thereof further SI for a period of three months.

(vii) For offence u/s 13(2)/13 (1) (d) PC Act, he is sentenced to SI for three years and fined Rs. 25,000/- in default thereof further SI for a period of one year.

16 Convict is Nagarajan Israel @ Raja is individually sentenced as

under:

(i) For offence u/s 419 IPC, he is sentenced to the period already undergone by them and fined Rs. 5000/- in default thereof SI for a period of one month.

(ii) For offence u/s 420, he is sentenced to SI for three years and fined Rs. 5000/- in default thereof further SI for a period of three months.

(iii) For offence u/s 465 IPC, he sentenced to SI for one year and fined Rs. 3000/- in default thereof further SI for a period of two months. (iv) For offence u/s 467 IPC, he is sentenced to SI for three years and fined Rs. 5000/- in default thereof further SI for a period of three months.

(v) For offence u/s 468 IPC, he is sentenced to SI for three years and fined Rs. 5000/- in default thereof further SI for a period of three months.


(vi) For offence u/s 471 IPC, he is sentenced to SI for one year and fined Rs. 3000/- in default thereof further SI for a period of two months.

(vii) For offence u/s 12 Passports Act, he is sentenced to SI for two years and fined Rs. 5000/- in default thereof further SI for a period of three months.

17 Convict David A. Johnson is individually sentenced as under:

(i) For offence u/s 420, he is sentenced to SI for three years and fined Rs. 5000/- in default thereof further SI for a period of three months.

(ii) For offence u/s 465 IPC, he sentenced to SI for one year and fined Rs. 3000/- in default thereof further SI for a period of two months. (iii) For offence u/s 467 IPC, he is sentenced to SI for three years and fined Rs. 5000/- in default thereof further SI for a period of three months.

(iv) For offence u/s 468 IPC, he is sentenced to SI for three years and fined Rs. 5000/- in default thereof further SI for a period of three months.

(v) For offence u/s 471 IPC, he is sentenced to SI for one year and fined Rs. 3000/- in default thereof further SI for a period of two months.

(vi) For offence u/s 12 Passports Act, he is sentenced to SI for two years and fined Rs. 5000/- in default thereof further SI for a period of three months.

18 All the sentences would run concurrently.

19 Needless to say that all the convicts would be entitled to

benefit of Section 428 Cr.P.C. However, as far as convict M. Suresh

Babu is concerned, he would be entitled to set off only with respect to


the period he spent behind the bars in connection with the present case

of CBI. It is not possible to grant him benefit with respect to the alleged

detention period of one year during Court Martial proceedings for the

reasons that Legislature has used words “same case” and secondly

there is no material whatsoever on record or brought by defence

suggesting that his alleged detention was under Court Martial

proceedings and the duration of such detention period.

20 A copy of judgment and order on sentence be given to all the

convicts free of cost.

21 All the convicts have also been made aware about the fact that

they have right to file appeal.

22 Ahlmad is directed to page and book-mark the file as per

the latest circular so as to enable digitization of the entire record.

23 File be consigned to record Room.

Announced in the open Court on this 17th July of 2012.

(MANOJ JAIN)Special Judge (PC Act) (CBI)

South Distt: Saket Courts: New Delhi


Judgement in Human-Trafficking Offences Allegedly commited by Army Personnel

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