These appeals are directed against the judgment dated 21 st December 2013 passed by the learned Special Judge, NDPS in SC No. 82 of 2008 convicting Jagdeo Singh @ Jagga (Accused No.1) (A-1) (Appellant in Crl.A. No. 527 of 2014) for the offences under Section 21 (c) and 29 of the Narcotics Drugs Psychotropic Substance Act (NDPS), Section 489 C and 120 B of the Indian Penal Code (IPC) and Section 25 of the Arms Act; Gurdeep Singh (A-2) (Appellant in Crl.529 of 2014) for the offences under Section 21(c) and 29 of the NDPS Act, 489 C and 120 B IPC; and Sukhwinder Singh @ Sukhi (A-3) (Appellant in Crl.A. No.607/2014) for the offences under Section 21(c) and 29 of the NDPS Act and 489-C and 120- B IPC.The appeals are also directed against the order on sentence dated 30th January 2014, sentencing A-1 to undergo twelve years of rigorous imprisonment (RI) with fine of Rs. 1.5 lakh for each of the offences under Sections 21 and 29 of the NDPS Act and in default to undergo simple imprisonment (SI) for six months, and imprisonment for three years with fine of Rs.10,000 and in default to undergo SI for one month Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 2 of 57 for each of the offences under Sections 489-C and 120-B IPC and further seven years RI and fine of Rs.50,000 and in default to undergo SI for three months for the offence under Section 25 of the Arms Act. All three sentences were directed to run concurrently.A-2 was sentenced to RI for ten years with fine of Rs.1 lakh and in default to undergo SI for three months for each of the offences under Sections 21 and 29 of the NDPS Act, RI for three years and fine of Rs.10,000 and in default to undergo SI for one month for each of the offences under Section 489-C and 120-B IPC; further A-3 was sentenced to RI for fifteen years and fine of Rs.1.5 lakh and in default to undergo SI for six months for the offence under Section 29 and 21(c) of the NDPS Act and three years RI and fine of Rs.10,000 and in default to undergo SI for one month and for the offence under Section 489-C and 120-B IPC.PW-16 endorsed the said information and discussed it with the ACP of the Special Cell.He then constituted a raiding team comprising of himself, Sub-Inspector (SI) Harbir Singh (PW-1), SI Ramesh Sharma, SI Ranbir Singh (PW-4), SI Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 3 of 57 Kishan Lal, Head Constable (HC) Suresh Chand, HC Ramesh Kumar, Constable Anil Kumar, Constable Ajay Kumar, Constable Hawa Singh and Constable Om Prakash.They left the office of the Special Cell in a government vehicle and reached the spot.On the way, as well as at the spot, the police asked two or three passersby to join the raiding team, but none agreed.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 3 of 57At around 7.30 pm, a Pulsar motorcycle No. DL 7SAZ 2142 stopped near the public toilet at Patparganj Road, Ganesh Nagar crossing.It was driven by Gurdeep Singh (A-2) who was carrying a black colour bag on his shoulder and on the pillion was Jagdeo Singh (A-1).A-2 took out a polythene bag from the black colour bag he was carrying and handed it over to A-1. A-2 remained on the motorcycle and A-1 stood at the Ganesh Nagar crossing.Both of them were served with notices under Section 50 of the NDPS Act. They were apprised of their legal right to be examined in front of the Gazetted Officer or Magistrate.Both refused to exercise such right.Their refusal was signed by them on the notices issued to them.From the polythene bag carried by A-1, two packets wrapped in yellow colour tape were recovered.They were weighed at 1 kg each.Upon opening they were found to contain light skin colour powder which A-1 revealed to be heroin.The samples were drawn out of the substance and the remaining substance was sealed in a separate pullanda.The seizure memo was prepared and FSL form was filled.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 4 of 57A cursory search of A-1 conducted by PW-1 revealed a pistol, one magazine and eight live cartridges.They were sealed in a separate cloth pullanda and a separate memo and FSL form was prepared.The black bag carried by A-2 was checked.It contained two packets wrapped in yellow colour tape weighing 1 kg each.They too contained skin colour powder which A-2 revealed to be heroin.Again samples were drawn and the remaining substances were sealed in separate pullanda.The seizure memo was prepared and the FSL form was formed.The case then was registered and investigation was handed over to Inspector Upendra Solanki (PW-17).Their disclosure statements were recorded.Both purportedly disclosed that the currency notes were counterfeit; that they were in the business of drugs, arms and ammunitions as well as fake currency along with Sukhwinder @ Sukhi (A-3).Twenty seven currency notes of Rs.1000 denomination were seized from the amount recovered from A-1, and two currency notes of Rs.1000 denomination were seized from the amount recovered from A-2, and a FSL form was prepared in respect of the said seizures.Investigation and chargeThe call detail records of the mobile phones recovered from A-1 and A-2 Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 5 of 57 were obtained.The statements of witnesses were recorded.The recovered pistol, eight cartridges, samples of heroin was sent to the FSL, Rohini.The report of the FSL confirmed that the currency notes were counterfeit and the samples contained high percentage of diacetylmorphine (DAM).Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 5 of 57The disclosure statement of A-3 in that case, and the intercepted calls on electronic surveillance in the said case revealed that A-3 was dealing in drugs, illegal arms and fake currency in conspiracy with A-1 and A-2. A-3 had been in continuous touch with A-1 and A-2. A-3 was thereafter produced and arrested in the present case.An application was also filed for taking the voice sample of A-1 and A-2 for comparison with the voice appearing in the intercepted mobile conversations.However, both A-1 and A-2 declined to give their voice samples.On 20th January 2009, a supplementary charge sheet was filed against A-3 for being in conspiracy with A-1 and A-2, for supply of drugs, arms and fake currency in Delhi.On 13th July 2009, charges were framed against three accused for having conspired to deal in drug trafficking and having been found in possession of commercial quantity of heroin and fake currency and thus Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 6 of 57 having committed offences punishable under Section 21 read with Section 29 of the NDPS Act, Section 120-B and Section 489- C IPC.14. A-1 denied having come to the spot on the motorcycle or even knowing A-2 before the arrest in the present case.He stated that on 23rd March 2007 at 5.30 pm, he was forcibly picked up by the police in Faridabad and the contraband and arms were planted on him by the police officials.He stated that he was residing in rented premises E-874, Dabau Colony, Faridabad.While he was in the market with his wife and eight years old daughter, PW-1 and other police officials stopped him and asked him to accompany them in their gypsy vehicle.PW-1 is stated to have told A-1 that "Sahib" wants to inquire something from him and that A-1 should accompany them and when A-1 declined, PW-1 and other police officials pushed him into the gypsy and tied his hands with rope and covered his face with the cloth.The vehicle was taken to Dhaula Kuan and thereafter to Laxmi Nagar.Further, in his presence, no site plan was prepared by PW-17 and no motorcycle was taken into possession.As regards notice under Section 50 of the NDPS Act he admitted that "I did tear it off as I was very tense and troubled on my false implication".He denied that any counterfeit currency, arms and ammunitions were recovered from him.He had shifted to outside Delhi after his release from jail and he wished to lead his life afresh.PW-1 (SI Harbir Singh) is related to SI Ombir Singh as they are cousins.Statement of A-2 under Section 313 Cr PCIn his statement, A-2 claimed that he was never a member of KZF.Although he had been arrested in two bomb blast cases, he had been acquitted.He denied having come to the spot on a motorcycle.He claimed that he did not know A-1 before his arrest.Though the motorcycle belonged to him, he was forcibly picked up by the police on 23 rd March 2007 at around 2:30 pm outside Gurudwara Sheesh Ganj.20. A-2 stated that one police official, SI Ramesh Sharma, Special Cell kept visiting him and inquired about his activities after his acquittal.Thereafter, he started working as a Sewadar in Gurudwara Sheesh Ganj and SI Ramesh Sharma used to visit him and also asked him to appear before the Special Cell.This continued for till two years, and when A-2 got fed up, he told SI that if he continued to harass him, he would file a petition in the Court.After about 1 months of his telling him that, SI Ramesh Sharma came at around 2:30 pm on 23rd March 2007 and asked A-2 to accompany him.At that time, A-2 was standing near the STD booth near Gurudwara.SI Ramesh Sharma spoke very politely to A-2 and told him that it was last time "Sahab" wanted to talk to him and, therefore, A-2 agreed to go along with him to the Special Cell.Along with him, Gurlal, another sewadar was standing.A-2 gave the key of his motorcycle to Gurlal.He told Gurlal that the motorcycle was parked in the parking lot of Gurudwara.21. A-2 stated that he was not apprehended in the manner stated by the prosecution; nor was he apprised of his legal rights to get himself searched before a Magistrate or a gazetted officer.He was mercilessly beaten and was forced to write the words on Section 50 notice.Before he wrote the words, the document was blank.He denied that any contraband was recovered from him.He denied recovery of any mobile phone.He stated that only a SIM card bearing No. 9999579926 was recovered from his possession.No mobile phones were recovered from A-1 in his presence.No site plan was prepared by PW-17 and no motorcycle was taken into possession in his presence.He claimed that the police had planted a notice on him and when he received the said notice pursuant to the order of the Court, he tore it off as he was very tense and troubled due to his false implication.He claimed that no currency was recovered nor did he give any disclosure that the currency was fake.He claimed that the entire proceedings were false and manipulated.No arms or ammunitions were recovered from him.22. A-2 stated that he knew A-3 because on a few occasions he had come to Gurudwara Sheesh Ganj and being a sewadar, one room had been allotted to him.Once or twice A- 3 had called him to confirm about the availability of the room in the Gurudwara.He had nothing to do with the intercepted calls.25. A-3 stated that he had no knowledge of the interception of the mobile phone conversations.He stated that he did not even know A1 before his arrest in this case.He claimed that he had been falsely implicated and nothing had been recovered from him - neither any contraband nor pistol nor mobile phone.He claimed that even in FIR No. 77/2007 he had been falsely arrested.He claimed that he never had any conversation with A-1 or A-2 regarding heroine and that the intercepted calls did not pertain to him.He claimed that DVDs and CDs did not contain any calls made by him.He claimed that his signatures were taken on many blank and written documents forcibly and that the police officials used to beat him if he refused to sign.He claimed that the voice or conversation which he had heard in Court did not pertain to him and that "though the said voice sounds similar to my voice, the CDs and the DVDs have been tampered."The first witness for the defence was Dr. Anand Kumar (DW-1), Medical Officer attached with CJ-4 dispensary at Tihar Jail.A-2 had complained that Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 13 of 57 he had been beaten by the police.On examination "pattern bruises were found present over the left side of the back and he was prescribed medication for the pain." Apart from the suggestions to him that the document wrongly recorded that bruises were found and that A-2 had been seen by Dr. Rakesh, who prepared the report, nothing much was elicited in the cross-examination of this witness by the learned APP.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 13 of 57He was standing with A-2 and other sewadar Gurlal at the STD booth situated near the entrance of Gurudwara at around 2:30 pm on 23 rd March 2007 when a person of medium height and slightly dark complexioned told A-2 "sahib bula rahe hain." A-2 addressed the said person as Mr. Sharma and asked him what happened but the said person merely repeated the statement made earlier. A-2 then told Gurlal that his bike was parked in front of the museum opposite Gurudwara and that he should bring the bike inside the Gurudwara premises and park it.The next day when he came to the Gurudwara, Gurlal told him that he had handed over the keys of the motorbike to the brother and father of A-2, who had come to the Gurudwara after coming to know of his arrest.It was found that A-2 had been taken away by the police and his bike was also taken away by the police after breaking its lock.Director, CFSL, Chandigarh (DW-3).DW-3 clarified that although in reply to the RTI application of A-1 (Ex. DW-3/B), it had been stated that no official from the CFSL, Chandigarh had attended the trial Court, he stated that he had appeared in the trial Court on 12th January 2009 to record the voice sample.He also brought an attested copy of the office movement register showing his movement from Chandigarh to Delhi (Ex. DW-3/E).The 4th defence witness was Mr. Deepak DW-4), the Nodal Officer who brought the summoned record (Ex. DW-4/A and 4/B respectively).It was not functional thereafter.DW-4 also brought the records pertaining to mobile No.9873836607 (Ex. PW-4/C) which showed that the phone was functional till 23rd March 2007 in the Delhi circle.The last call in the said phone received was at about 19:38:08 hours.Thereafter, it was not in network in Delhi circle.As per the cell chart ID, the location of the mobile at that time was Nangla Rai at Delhi Cantt., and at about 18:00:50 one outgoing call was made from the same cell tower.At about 18:07:10, an incoming call was received from the same tower.At about 18:18:15, an outgoing call was made from the same mobile tower.Another outgoing call was made at about 19:06:18 from the tower at Lajpat Nagar, Part-II.(i) Although A-2 had contended that his motorcycle had been forcibly taken by the police from the parking lot after breaking open the lock, in an application filed by him before the learned Special Judge on 7th June 2007 (Mark R-1), he took a very different stand.He stated that at around 6-6:30 pm, when he was standing with his friend near the STD booth near the Gurudwara, SI Ramesh Sharma had come there and asked him to accompany him to his Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 17 of 57 office for some inquiry; that A-2 followed the SI on his own motorcycle and that only after he and the vehicle of SI passed the Lal Qila red light, SI Ramesh Sharma asked him to leave his bike and accompany in his vehicle since he had received a message that a senior officer was leaving and would return only after 9:00 pm and SI Sharma did not want A-2 to spoil his whole night.(iii) The intercepted mobile conversations proved on record by the prosecution totally corroborated the version put forth by the prosecution with respect to the manner of apprehending the accused persons.The intercepted mobile conversations proved that A-1 and A-2 were known to each other, much before 23rd March 2007 and were together involved in some business.Even on 23rd March 2007, A-1 and A-2 were in continuous touch with each other till 7:30 pm.The mobile conversations were played in Court and the transcripts were also filed in the judicial record.It showed that at around 4:45 pm, A-1 called up A-2 and both of them decided to meet near a tea vendors shop.The learned trial Court also adverted to the further Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 18 of 57 conversation that took place between the two at 5:13 pm, 7:05 pm and 7:35 pm.At around 7:35 pm in the conversation between A-1 and A-2, A-1 informed A-2 that he was able to reach the designated spot by taking a lift and told A-2 that he was standing near a banana vendor.Two minutes thereafter, A-2 made a call to a person, whom he addressed as Raju stating that the said person Raju should be able to spot him and tried to tell him where A-1 was standing.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 18 of 57(iv) The intercepted mobile conversations were of unimpeachable quality and could not be doubted merely because they were produced belatedly.The prosecution was able to satisfactorily explain the delay.The depositions of PW-s 1, 17 and 30 revealed that the four mobile phone Nos. 9876933745, 9317534945, 9811328172 and 9817060613 were under the surveillance of the Special Cell, much before the apprehension of A-1 and A-2 and the conversations that took place on the said mobile phones were automatically saved in the server of the Special Cell.The call related information was automatically recorded at the time the calls were made and thereafter transferred to the server of the Special Cell using a software application.The allegation that the signatures of A-1 on various documents was forged was false as the evidence of the handwriting expert did not conclusively prove that the signatures of A-1 were forged.Right from the supply to them of the chargesheet and documents, they were taking the plea that no contraband had been recovered them.The percentage of diacetylmorphine in the four samples, i.e., S-1, S-3, S-5 and S-7 showed that these were of commercial quantity.An attempt had been made to remove number 3 (from 31.6%) and 41 (from 41.2%) which was noticed by the learned trial Court.The deposition of PW-14 put to rest any doubt as to the discrepancy that resulted as a consequence of such tampering.(x) Even in the absence of the public witnesses, the prosecution has been able to prove recovery of 4 kg.While PW-1 deposed that A-1 had approached the spot from the Laxmi Nagar side, PW-4 deposed that he approached from the Seelampur side; PW-10 stated that he approached from Patparganj side and PW-16 stated that he approached from Seelampur side.It is pointed out that the site plan is not prepared and the identification by PW-16 is different from the site plan filed by the IO (PW-17).(ii) PW-1 deposed that there was a goal chakkar at the place of arrest, whereas the site plan did not show any such goal chakkar.In fact, it was a red light crossing.(iii) Even as regards the time of arrest, there were inconsistencies.The journey on the motorcycle from Sarai Kale Khan to the place of arrest takes at least 20-30 minutes in peak hours.The prosecution story that A-1 was at goal chakkar on 23rd March 2007 was, therefore, false and fabricated.The Nodal Officer (PW-29) confirmed that the said mobile number was at Laxmi Nagar Chowk at 7:30 pm, which was 2 kms.There was no explanation as to why the said mobile conversations were not part of the original charge sheet.The alleged information that A-3 was using from the mobile No.9876933745 for contacting KLF was not part of the original charge sheet.There was no evidence to show that any of the mobile phones pertained to A-3 or how the phones were intercepted.The technology used in the system was capable of being manipulated.The procedure for interception was full of loopholes and Section 65B of the Evidence Act has not been complied with.The report of Dr. Rajender Singh (PW-28) regarding matching of the voice samples of A-3 on the taped conversations with the sample voice was doubtful and has not been proved in accordance with law.Mr. Jain submitted that the prosecution had failed to prove that A-3, at any time, either subscribed to or owned mobile Nos. 9876933745 and 9317534945 and, therefore, he could not have been convicted under Section 20 NDPS Act. The tampering of the CDs containing the taped conversations cannot be ruled out.At around 6.10 pm information was received by PW-16 that A- 1 and A-2 would come near Pandav Nagar Mother Diary around 7.30 pm for supply of smack to one Negro and the said information was passed on ACP Ravi Shankar who instructed PW-16 to conduct a raid.In any event since the secret information was not in respect of the contraband being in some house, the provision of Section 42 NDPS Act was not attracted.As regards the occurrence at Pandav Nagar, Mother Diary, Mr. Katyal pointed out that although notices were in fact issued under Section 50 NDPS Act to each of accused, i.e., A-1 and A-2 separately, both of them had destroyed the copies of the notices served upon them.In any event, contraband was recovered from the polythene bag of A-1 and from bag of A-2 and thus the contraband was not present on their person.The contraband was sealed with the seal of HS and handed over to PW-16 along with FSL forms and PW-16 left the spot at around 10.20 pm.It was taken to PS Lodhi Colony at about 11.15 pm and handed over to SHO Paras Nath (PW-13) who affixed his seal of PNS on all the parcels and FSL forms and deposited the same in the malkhana.Turing to the facts in the present case, there is a whole chain of events that has taken prior to the interception orders of the mobile phones.The interception orders were in respect of the mobile phones (Ex.PW20/A, Ex.PW20/B, Ex.PW26/A, Ex.PW26/B and Ex.PW26/C).PW-1 stated that after the after the bomb blasts that took place in 2005 at Liberty and Satyam Cinemas the mobile phones of the suspects were kept under surveillance.PW-1 had been deputed to listen to those conversations.He learnt that A-3 was in constant touch with Daya Singh Loharia, a Member of KLF.There was a specific instruction from senior officers that the surveillance of the mobile phones had to be kept secret.PW-17 explained that after hearing the conversations of all the calls, he copied all of them in DVD and CDs (Ex.P-29, P-36 and P-38).The computer system installed in the Special Cell was under the supervision and control of PW- 30 and the password of the same remained with him.It was stated that during the relevant period there was no problem in the operation of the computer system while recoding the calls nor was there any break down.58. PW-17 clarified that it was PW-1 who downloaded and handed over the transcripts to him for observation.He had opened the file in the office computer giving it the name of Upender.He spoke of the preparation of the transcripts of all mobile phone calls.As far as A-1 Jagdeo Singh and A-2 Gurdeep Singh are concerned the case of the prosecution has to be considered de hors the electronic evidence produced i.e., the CDRs of the mobile phones stated to have been used by each of them.The specific case of the prosecution is that at around 7.30 pm on 23 rd March 2007 both the accused came near the public toilet Patparganj Road at Ganesh Nagar Crossing.According to the prosecution, the motorcycle was driven by Gurdeep Singh (A-2) who was carrying a black colour bag on his shoulder.Jagdeo Singh (A-1) was the pillion rider.A-2 took out a polythene bag from the black colour bag that he was carrying and handed it over to A-1. A-2 remained near the motorcycle and A-1 stood at the Ganesh Nagar Crossing.At that point of time, both were apprehended." This is purely a surmise since the burden was entirely on the prosecution to show that the signatures on the seizure memo, recovery memo and the inspection memo etc., were in fact only of A-1 and no one else.On his part A-1 has probablised his defence that those signatures were not his.The evidence of CW-1 is more than sufficient to probablise that defence.Evidence of torture of A-1 and A-2The plea of A-2 is that he was picked up from Gurudwara Sheesh Ganj forcibly and his motorcycle was also picked up from the parking area.He examined Pargat Singh (DW-2) to prove this plea.He also has alleged as being tortured by the police while in custody.In respect of that plea he examined Dr. Anand Kumar (DW-1).The relevant pages of the said register has been brought by me today and are Ex.DW1/B".He produced the medical record of A-1 (Ex. DW5/A).He deposed that "As per the said medical record, the accused Jagdeo was first examined on his admission to jail on 4 th April 2007 and had complained that he had been beaten by police on 2 nd April 2007 and that he had pain over his whole back.On examination, pattern bruises were found present over the whole back, left arm upper and lower, left thigh, and the legs and he was prescribed medication for the pain".(emphasis supplied)The aforementioned sentences were directed to run concurrently with the sentences already imposed upon A-1 in FIR No.164 of 2007 at Police Station (PS) Sidhwabet.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 2 of 57Case of the prosecutionAdditionally, A-1 was charged with having been found in possession of one pistol along with eight live cartridges and thereby committing an offence under Section 25 of the Arms Act. All the accused pleaded not guilty and claimed trial.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 6 of 57The prosecution examined twenty nine witnesses.When the evidence was put to the three accused under Section 313 of the Code of Criminal Procedure (Cr PC), each of them denied it and claimed to have been falsely implicated.In Laxmi Nagar under the railway bridge Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 7 of 57 the vehicle was stopped.The police officials then tried to shift him to a private Wagon R in which A-2 and PW-17 were already sitting.When A- 1 raised hue and cry a lot of people gathered at the spot and questioned the police as to why they were taking A-1 away.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 7 of 5715. A-1 denied having been apprised of any legal right under Section 50 of the NDPS Act. He was beaten by the police officials who forced him to write on the notice.He denied that any contraband or pistol was recovered from him.He also claimed not to know A-3 prior to his arrest in the present case.In respect to the transcript of the intercepted calls, A-1 denied having been part of this conversation or having made the conversation shown in that transcript.He stated that it was correct that on 2nd January 2009 he had agreed to give his voice sample but he had specifically requested that he should be taken to CFSL Chandigarh since he was apprehensive that in Delhi the police officials would manipulate his voice samples.Although the trial Court had permitted this but A-1 was not taken to CFSL Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 8 of 57 Chandigarh.On 12th January 2009 he refused to give the voice sample in Court apprehending that it would not be taken properly and would be manipulated.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 8 of 57When asked if he wished to say anything else, A-1 stated that he had been falsely implicated in the case.He stated that he has been in judicial custody from 2001 to 15th August 2006 since more than 21 cases has been registered against him in various police station and that he has been acquitted in most of them.In six cases he has been convicted and in two cases he has filed appeals which are pending in the High Court.A-1 alleged that consequently PW-1 had been responsible for A-1 being falsely implicated in the present case.He denied that the conversations recorded on the CDs and DVD between him and the other co-accused persons were in his voice.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 9 of 57He denied the intercepted calls.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 11 of 57As regards voice samples, A-2 stated that he did agree on 2nd January 2009 to give his voice sample but requested that he should be taken to CFSL, Chandigarh for that purpose.However, they were not taken there.On 12 th January 2009, he had refused to give the voice sample in the Court as he was apprehensive that it would be manipulated.An additional statement was recorded of A-2 on 11th July 2013 when he denied all the intercepted calls.Statement of A-3 under Section 313 Cr PCIn his statement, A-3 stated that he used to go and meet Daya Singh Lahoria while he was lodged in Nabha jail as he was a good friend of his.He stated that he used the mobile No.9876933745 but thereafter stated that he had never used the said mobile phone and that he was not dealing in fake currency notes, drugs, arms and ammunition.He stated that he did not know A-1 but knew A-2 who was a sewadar in Gurdwara Sheesh Ganj, New Delhi.He had got in touch with A-2 when he had come to Delhi for pairvi of cases of Daya Singh Lahoria in the Supreme Court and in Jaipur courts.He claimed that no mobile phone was recovered from his Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 12 of 57 possession.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 12 of 57Gurlal had since left the services of the Gurudwara and was presently residing in Punjab.In his cross-examination, DW-2 stated that neither he nor Gurlal made any complaint to the police about the motorcycle of A-2 being taken by some police officials.He also did not complain to the police after coming Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 14 of 57 to know from his father and brother that A-2 had been picked up by the police.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 14 of 57The third defence witness was Mr. S.K. Jain, Dy.At about 17:58:44 an outgoing call was made from that mobile for 61 Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 15 of 57 seconds.At around 19:32:15 an outgoing call for 29 seconds was made from the same cell tower at Sarai Kale Khan.At about 19:32:47 an incoming call was received for 16 seconds from the cell ID tower of Bhairon Marg, Pragati Maidan.The mobile phone was used with IMEI No.354540018396220 for all the aforementioned calls.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 15 of 57An attested copy of the first medical examination of A-1 was (DW-5/A) was brought on record.A-1 had complained that he was beaten by the police on 2nd April 2007 and had pain over his whole back.On examination, pattern bruises were found present over the whole back, left arm upper and lower left thigh and the legs.A-1 was prescribed medication for the pain.He was unable to speculate how A-1 could have received the injuries.Head Constable Sanjeev (DW-6) attached to PS Special Cell, Lodhi Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 16 of 57 Colony was examined next.He brought the malkhana register No.19 for the year 2007 and the daily diary register for the same year.He pointed out that the register with respect to the duty roster of the year 2007 had been destroyed within a period of two years.He stated that there was no entry as to PW-17 (Inspector Upendra Solanki) receiving any case property from malkhana.He further stated that PW-17 had made the said entry at NR Rohini where he was then posted.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 16 of 57The trial Court judgmentBy the impugned judgment dated 21st December 2013, the learned trial Court found the three Appellants to be guilty of the offences under Section 21(c) and 29 of the NDPS Act, Section 489(c) and 129-B IPC and Section 25 of the Arms Act. By the order on sentence dated 30th January 2014, the learned trial Court sentenced the A-1, A-2 and A-3 in the manner indicated hereinbefore.Therefore, A-2 sat in the vehicle with SI Sharma and his bike was driven by a police official.Since this application was filed three months after his arrest, the answers given under Section 313 Cr PC was false.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 17 of 57Three minutes thereafter, A-2 again called Raju and while talking, he screams, telling him to run away.Consequently, both A-1 and A-2 had taken a false defence before this Court.As per the deposition of PW-17, after listening the calls in the DVD, he copied them in the CDs (Exs. P-29, 36 and 38).Thus, the conditions laid down under Section 65-B of the Evidence Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 19 of 57 Act had been complied with.Since there was no manual intervention, it could not have been tampered with.When the CDs were played in Court, the call related information was reflected on the computer screen along with the graphs of the voice patterns.The details showed that the calls in question were made during the period February 2007 and March 2007, i.e., before the arrest of the accused.(vi) The contention of the accused was that the mobile transcripts showed that A-1 and A-2 were having conversation around 7:45 pm was contrary to the stand of the prosecution that they were arrested at around 7:30 pm.The members of the raiding party deposed that Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 20 of 57 the time of apprehension of accused persons "was about 7:30 pm." and this did not mean exactly 7:30 pm.Further, the cell tower catches the frequency of a mobile phone if the location of the said mobile is within 1-2 km range.Therefore, there was no discrepancy if the cell tower at Pragati Maidan was able to catch the frequency of mobile phone used by A-1 when he was near Ganesh Nagar.The said spot was within 2 km. of Pragati Maidan.The evidence of Dr. Rajender Singh (PW-28), who was the head of the Foreign Voice Identification Unit, CFSL proved that the questioned voice of A-3 in the taped conversations tallied with his specimen voice.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 20 of 57(vii) Dr. S.K. Jain, Dy.(DW-3) had come to the Court on 12th January 2009 to record the voice sample of A-1 and A-2 but they had refused.An adverse inference, therefore, was drawn against them.They did not take the plea that no mobile phone had been recovered from them, although the recovery memos were duly supplied to them with the chargesheet.(viii) Since the recoveries in the present case had not been effected from the persons of the accused, but from the bags carried by them, hence Section 50 NDPS Act was not applicable.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 21 of 57(ix) Dr. Madhulika Sharma (PW-14), the FSL expert, explained that the colour of the samples which were received for analysis, which were of cream colour, could change to brown colour due to moisturization.PW-14 was not examined on this aspect.After A-1 and A-2 were apprehended, A-3 spoke about the arrest to at least three persons from his mobile.After the arrest of A-1 and A-2, the conspiracy in question had come to an end and, therefore, the statements made by A-3 thereafter could not be read against his co- conspirators under Section 10 of the Evidence Act, but they could be read against A-3 himself under Section 8 of the Evidence Act.Consequently, all the three accused were held guilty for the offences with which they were charged and sentenced in the manner indicated Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 22 of 57 hereinbefore.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 22 of 57Submissions of counsel for the AppellantsOn behalf of A-1, Mr. Rana made the following submissions:(i) The prosecution story regarding the arrest of A-1 was totally false.While PW-4 stated that A-1 is arrested at 7:30 pm on 23rd March 2009, the CDR and the call locations contradict the whole story.The CDR and the call locations filed by the prosecution for mobile nos. 9811328172 and 9873836607 allegedly recovered from A-1 shows that the said mobile was at Sarai Kale Khan at 7:32 pm and at Bhairon Marg on 7:32:47 pm, which is approximately 6-7 kms.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 23 of 57from the place of arrest shown by the prosecution.from the place of arrest and 8-10 kms.from Sarai Kale Khan.(v) Although the place of arrest was a busy public place with many markets, shops etc. being there, PW-17 did not bother to involve any public witness.(vi) The signature of A-1 on the different memos and notice under Section 50 NDPS Act were forged by the IO.Reliance has been placed on the decisions in Vijaysinh Chandubha Jadeja v. State of Gujarat (2011) 1 SCC 609, Rakesh @ Shanker v. State (decision dated 8th January 2014 in Crl.PW-17 uploaded the said transcripts in his computer on 24th January 2008, i.e. after 2 months and 22 days.The voice samples along with the said CD and DVD made from the said copies were sent to CFSL on 6th October 2008, i.e., 8 months after taking the sample, but it had not been verified by the FSL Lab as to whether the CD was an original one or a fake one.(ix) The recoveries were planted on the accused.There was discrepancy in the depositions of PWs 13 and 16 as to whether the case property was deposited in the Malkhana or MHMC Malkhana was called to the office handed over the properties recovered.(x) PW-17 stated that he had opened the sealed pulanda on 4th April 2007 without permission of the Court, and then took out Rs. 27,000, while keeping Rs. 1,740 there.A question arose as to how Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 25 of 57 he knew that Rs. 27,000 were fake currency, whereas Rs. 1,740 were genuine.Moreover, Ms. Deepa Sharma (PW-12), the FSL expert deposed that she received Rs. 27,000 in loose condition.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 25 of 57(xi) The linking evidence regarding chain of events of the source from which the contraband was produced and its final destination was not proved.(xiii) As per judicial as well as other records, the time of arrest of A-1 on 23rd March 2007, was 7:30 pm the CDR for mobile number 9873836607 showed that A-1 was still making calls to A-2 at around 19:41:07 pm to 19:41:35 pm (call No.8629).Further, DW-4 deposed that at around 19:32:47 pm he was in Bhairon Marg and not Ganesh Nagar.If, as per DW-4, the said mobile remained switched off w.e.f. 12:03 noon on 15th March 2007, there was no need to obtain any sanction for interception of such call.The circumstance in which A-3 was arrested was also doubtful.He was arrested on 26th July 2008 while he had already been arrested Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 26 of 57 in FIR No. 77/07 with the same Special Cell.This happened after the report of the handwriting expert was received by the learned trial Court on 5th May 2008, which showed that the signature of A-1 on various documents were forged whereupon the prosecution panicked and to do damage control, made A-3 an accused in the cases.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 26 of 57He had complained against ASI Ombir Singh, who was then dismissed from service after a departmental inquiry.Apart from reiterating many of the above submissions, Mr. Gautam, learned counsel for A-2 pointed out inconsistencies in the prosecution witnesses as to the time and place of arrest and the steps taken thereafter.It was pointed out that the mobile phone remained with the IO for a long time.Therefore, his statement could not be said to be voluntary.Mr. Gautam submitted that inasmuch as the case property was taken to the office and not deposited at the nearest PS, an adverse inference ought Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 27 of 57 to be drawn against the police.There was no evidence to prove that A-2 was a member of the KZF.The mobile phone seized from A-2, i.e., 9821060613 was not in his name.It was not shown to him either.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 27 of 57Mr. Anurag Jain, learned counsel appearing for A-3, submitted that he was falsely implicated in this case.The mobile conversations which allegedly took place between the accused persons were false, and concocted.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 28 of 573 were missing.There was no evidence to show that A-3 had entered into a criminal conspiracy with the other accused to deal in trafficking of fake currency, arms and ammunition and heroine.He further stated that he handed over the parcels to MHC (M) HC Mahavir Singh (PW-5) who affirmed the same.As regards the deposit of parcels and FSL forms, PW-Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 29 of 578 stated that four samples sealed with the seal of HS and PNS along with FSL forms were handed over to PW-11 by a road certificate.PW-11 affirmed the same and stated that he deposited the samples with FSL Rohini.PW-14 affirmed that she received the four sealed parcels along with FSL form and specimen seal impression as HS and PNC for chemical examination.According to Mr. Katyal, the site plan (PW-17/A) when read in consonance with the evidence of the witnesses shows that there was no discrepancy as regards the place of apprehension at the spot.The reports under Section 57 NDPS Act (Ex.PW-6/C) & Ex.PW-6/E) having the receiving of office of ACP, Special Cell, NR were also proved by Ex.PW6/D and F.As regards the mobile phones used by A-2, Mr. Katyal pointed out that from the CDR of Mobile No. 9871060613 it was apparent that it was being used on both the mobile phones i.e., Nokia 2300 (IMEI 355361003085245) having a SIM of Airtel and Nokia 8310 (IMEI 350700106948921) having SIM of Hutch.The mobile Phone No. 9999579926 was admittedly in the name of A-2 himself that was used on Nokia 8310 as evidenced from the CDR.As regards A-1, the mobile instrument is Motorola 5960 (IMEI 358612004213070) with the SIM of Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 30 of 57 Hutch.The second phone was recovered from A-1 was Nokia 1110 with IMEI 354540018396 as 6223) with the SIM of Hutch.On these mobile instruments the mobile numbers of 9888979849 and 9811328172 were used.The third was Sony Eriksson with the IMEI 354244013209750 having a SIM of Hutch.Till placing on record the intercepted conversations, A-2 took the stand that the mobiles were not recovered from them.The intercepted conversations showed that A-1 and A-2 knew each other very well and were involved in some clandestine activity.Neither the CDRs nor the voice interceptions could be manipulated with the mobile phone.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 30 of 57As regards the beatings given to A-1 and A-2, Mr. Katyal pointed out that during police custody of A-1 and A-2, they were produced before doctors for their medical check-up and in none of the reports there was any complaint made regarding the alleged beatings.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 31 of 57It was pointed out that the retraction statements of A-2 showed that when he was produced before the Court, he did not complain of any torture.The plea that they were kept standing outside the Court of the learned MM, when remand was sought, was not substantiated.Inspector Preetam Singh (PW-24), SHO, PS Sidhwa Bet confirmed that A-3 had been arrested in FIR No. 164 of 2007 and mobile phones and other materials had been recovered from him.Mr. Katyal took the Court through the various interception orders.The intercepted calls were copied on DVD/CD and were seized by seizure memo.He Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 32 of 57 submitted that the trial Court had extensively dealt with the evidence on record and had rightly convicted them in the manner indicated hereinabove Electronic evidence and Section 65-B of the Evidence ActCriminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 32 of 57Among the critical pieces of evidence the intercepted conversations on the mobile phones allegedly used by the three accused and the call detail records (CDRs) of those phones.PW-1 revealed some facts to PW-16 by keeping his operation to be secret.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 34 of 57PW-1 stated that he was given permission only on 2nd April 2008 to hand over the intercepted phone conversations transcriptions in a pen drive to SI Upender Solanki (PW-17).The conversations between the accused persons were intercepted and provided to the office of the Special Cell.They were translated into Hindi.Since A-3 knew only Gurumukhi, the calls pertaining to him were translated.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 35 of 57When the DVD prepared by PW-17 (Ex.P-26) for reference was produced, defence counsel objected to it in view of Section 65B EA.They also objected to marking of CD (Ex.PW-29) containing the questioned conversation with the specimen voice sample taken of A-3 during investigation.The transcripts of those conversations were also exhibited as Ex.P30 to Ex.Likewise, the CD containing the selected calls of each of the other accused were tendered in evidence.They too were objected to by the defence counsel.Those conversations were nevertheless played in Court and transcripts thereof also produced.In his cross-examination PW-17 stated as under:"The original device on which the intercepted call records pertaining to this case was not sent for examination to the FSL.I was only given the pen drive in which the said intercepted call details were copied by SI Harbir Singh.I did not see from where these call details were copied.PW-17 further stated as under:Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 36 of 57An application was filed by the prosecution before the trial Court under Section 311 Cr PC.In the further examination-in-chief, PW-17 stated as under:"After SI Harbir Singh handed over the said pen drive to me at about 7 pm and I copied the data from the same in the hard disk of the computer system that I was using at that time.Since the calls ran into thousands, it took me almost three months to hear all the calls and thereafter, I copied all the calls in DVD Ex.P26 and the relevant calls in the CDs Ex.P29, P36, and P38 (the CDs and the DVD will be heard by this Court during the final arguments).I had returned the pen drive to SI Harbir Singh on 2 nd April 2008 itself and after copying the data in the computer system.I had copied the data in a file which could only be accessed by using the password which was known to me only.Nobody could have accessed to file made by me without my knowledge.During the three months period, no fault occurred in the computer system in which the relevant file was stored and neither was the said file corrupted in any manner.I state that the calls recorded in the CDs and the DVDs Ex.I have no personal knowledge whether Harbir Singh could have tampered or manipulated the data in the pen drive.I did not Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 37 of 57 at any time hear the original intercepted calls.I did not seize the hard disk of the original computer system from which the intercepted calls were copied."I did not have access to any such record.A separate folder was prepared.In effect what was happening in the process was that electronic data was copied from one device to a pen drive.When he was examined in detail it became apparent that what was being spoken of was the making of further copies of those copies.The original remained on a server which none of the other persons had occasion to access.No such person was examined in the present case.It has also come in the evidence of PW-17 himself that "I did not at any time make an enquiry whether the original computer monitoring system which was recording the intercepted call had a breakdown or not."Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 41 of 57The other piece of electronic evidence is the intercepted mobile conversations.PW-28 Dr. Rajinder Singh, the CFSL expert, who analysed the voice samples stated in his cross-examination: "The intercepting machine was not sent to us and the questioned sample was sent in a cassette." As far as Inspector Sandip Malhotra (PW-30) is concerned, his evidence is to the effect that he was the administrative head of the system which was used for monitoring the calls.The password of the said system remained with him.He opened the system using the password and in his presence PW-1 copied the relevant calls." In his cross-examination by counsel for A-1, he stated "I was throughout present with SI Harbir Singh when he copied the data from the monitoring system.It took about 8-9 hours to copy the data.It further declared:Case against A-3As far as the case of A-3 Sukhwinder Singh @ Sukhi (the Appellant in Crl.A. No. 607 of 2014) is concerned, the entire case of the prosecution against him is based on electronic records.It may be recalled that Sukhwinder was already arrested in some other case when the investigation of the present case was underway.Initially, the FIR did not include the name of Sukhwinder.Therefore, as far as A-3, Sukhwinder @ Sukhi is concerned, the entire electronic records have to be kept out of consideration.There is no dispute that as far as A-3 is concerned, there is absolutely no other evidence to connect him to the two accused, i.e., A-1 and A-2 and to bring home the charges framed against him after the filing of the supplementary chargesheet.In the view of the matter, the impugned judgment of the trial Court convicting A-3, Sukhwinder @ Sukhi for the offences with which he was charged with cannot be sustained.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 45 of 57Case against A-1 and A-2The members of the raiding team who were present at the spot and have deposed in this behalf are SI Harbir Singh (PW-1), SI Ramvir (PW-4), HC Ajay Kumar (PW-10) and Inspector Anil Dureja (PW-16) who was heading the raiding team.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 46 of 57The case of the prosecution is that from the polythene bag carried by A-1, two packets of 1 kg each of heroin was seized.Also from the personal search of A-1, PW-1 recovered one pistol, 1 magazine and 18 live cartridges.From the back bag carried by A-2, two packets of 1 kg each of heroin were recovered.Thereafter, PW-17 conducted personal search of both the accused, wherein he recovered from A-1, Rs. 28,740 consisting of 27 currency notes of Rs. 1,000 denomination and from A-2 Rs. 2,025 consisting of two currency notes of Rs. 1,000 denomination.The third set of recoveries were made from the personal search of both the accused.A perusal of the trial Court judgment shows that extensive reliance has been placed on the intercepted telephone conversations which were produced by the police with the supplementary chargesheet.The trial Court reproduced the intercepted conversations in paras 43 and 44 and also relied upon the evidence gathered from the intercepted conversations which were recorded in the CDs in paras 46 toOn the aspect of arrest of A-1 and A-2, the genesis of the case assumes significance.Compliance with Section 42 NDPS is thrown into doubt on account of the fact that in the supplementary charge sheet the Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 47 of 57 prosecution has come up with the theory that the information regarding the possible handing over of narcotics by A-1 and A-2 to a Nigerian was chanced upon while tapping the mobile conversations.This is very different from the secret informer giving that information to Anil Dureja.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 47 of 57Compliance with Section 50 and the evidence of the handwriting expertCriminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 48 of 57Para 54 of the trial Court judgment deals with evidence of the handwriting expert Mr. T. Joshi of CFSL, Chandigarh examined as CW-1. A-1's specimen writings and signatures were collected and sent to CW-1 for examination.As such, it is not been possible to link the authorship of the mark Q-1 to Q-11 with the standard writing S-1 to S-4, AS-1 and AS-2."CW-1 further categorical stated "I could not link the authorship of questioned writing Mark Q-1 to Q-11 with the standard writing Mark S-1 to S-4, AS-1 and AS-2".In his further cross-examination he stated that "the writing features that were observed in the questioned writings were not observed in the standard writing as we consider the strokes, curvatures, alignment and other parameters were different in the questioned and standard writings but one of the parameter, i.e., pressure could not studied from the questioned signature and meaning thereby the writing features of questioned documents and standard writing could not be linked." When asked to elaborate what was the parameter which was lacking, he clarified "The parameter was the greater pressure in the Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 49 of 57 questioned writing not in the standard writing and the same cannot be asked from the agency."It was for the prosecution to explain under what circumstances different signatures, other than those of A-1, appeared on those documents.The trial Court took exception to both A-1 and A-2 tearing up the notices under Section 50 NDPS Act that were served on them.In this context, the plea of the accused that they were subject to torture while in custody assumes significance.On the aspect of torture of both A-1 and A-2 while in custody, the trial Court failed to appreciate the evidence in that regard.It merely called for a report and directed the Police Commissioner to hold an enquiry to determine who the erring police officials were and thereafter to take necessary action against them.The trial Court overlooked the fact that normally the accused is unable to produce any direct evidence to make the good the plea that he was tortured in the police custody.In this case however apart from taking the plea in his statement under Section 313 Cr PC that he was tortured in the police custody he also produced a defence witness Dr. Anand Kumar, Medical Officer in Tihar Jail (DW-1).DW-1 produced the medical record of A-2 (Ex.He categorically stated "on examination, pattern Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 51 of 57 bruises were found present over the left of the back and he was prescribed medication for the pain.As per the in and out register record, this accused was examined by then medical officer Dr. Rakesh.He was not shaken in his cross-examination.He further clarified "The first medical examination of an accused admitted in jail is conducted immediately on the entering of the accused in the jail premises and he is not allowed to go inside the jail premises without the said examination and therefore the injuries mentioned on the first examination record of an accused cannot ever be received by him inside the jail."Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 51 of 57Nothing significant was elicited by the APP in the cross-examination of DW-1 and DW-5 to discredit their testimony.The Court concludes that both A-1 and A-2 have probablised their version that they were subjected to torture in police custody.Consequently, their so-called confessional statements could hardly be taken to be voluntary.The defence evidence ought not to have been overlooked while assessing the Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 52 of 57 story of the prosecution about both A-1 and A-2 being apprehended from the spot i.e., outside the public toilet near Patparganj.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 52 of 57Contradictions in evidence of PWs as to the place of arrestIn para 56 of the trial Court judgment, the various contradictions pointed out in the statements of the prosecution witnesses have been dismissed by holding that it has no major significance which goes to the root of the matter.These inconsistencies pertain to certain important aspects regarding the place from where both the accused A-1 and A-2 were apprehended.According to the prosecution both the accused were intercepted when they were outside the public toilet near Ganesh Nagar crossing.This implied that they had come from the Laxmi Nagar side.However, none of the witnesses had spoken in one voice on this aspect.It has been pointed out that Anil Dureja (PW-16) in his cross-examination stated that the deployment of the police personnel was near the Mother Dairy on both sides.He did not remember what the distance was between the Ganesh Nagar chowk and the Mother Dairy.The distance between the Laxmi Nagar bridge and the Mother Dairy is stated to be 150 meters.The distance between the toilet at Ganesh Nagar and the Mother Dairy is almost 50 meters.If the police personnel were deployed within 10-15 meters on Mother Dairy then it is clear that they were not at the spot where the two accused were.PW-10 on the other hand stated that he had taken the position near the 'roundabout' near Mother Dairy.There was in fact no roundabout within 50 meters from the bridge.Even PW-1 talks about taking position near the crossing of the gol chakkar after getting Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 53 of 57 down from the over bridge.There is no gol chakkar at that spot.The site plan filed by the prosecution does not show any gol chakkar.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 53 of 57The further contradictions are that while PW-1 stated that both the accused came to the place from the Laxmi Nagar side, PW-4 stated that they came from the Shakarpur side.Even if both Shakarpur and Laxmi Nagar bridge are on the same side, this is contradicted by PW-10 who states that they approached the place from the Patparganj side which is opposite to the Laxmi Nagar side.It is also clear that with respect to the recovery of three things from the personal search of the accused i.e. fake currency notes, the mobile phones and the pistol and live cartridges, the seizure and recovery memos had to be proved beyond reasonable doubt by the prosecution.With the signatures of A-1 on the said documents not being proved beyond reasonable doubt the prosecution has been unable to establish whether the seizures took place in the manner indicated.There is another aspect of the recoveries which has completely been missed by the trial Court.PW-16 has stated that he deposited the recoveries in the malkhana, whereas, PW-13 stated that he called the MHC(M) HC Mahavir Singh and handed over the articles to him.PW-17 states that he took out Rs.27,000/- from the sealed pullandas and kept back Rs.1740 there.In his cross examination, PW-17 states that "It is correct that fact that the sealed envelope which was opened to take out the notes was preserved was not mentioned Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 54 of 57 in my records.I do not remember whether the envelop used by me for keeping the balance of Rs 1740 was the same envelope in which the original amount of Rs 28740 was kept.It is correct that no description of the seal which was affixed on the said envelop has been mentioned in Ex. PW4/A. Even on 4 th April 2007, I had not verified the contents of the case property but had only opened the pullandas of jamatalashi.I do not remember whether I had even broken the seal on the envelope containing the currency notes or I had managed to take out the notes without breaking the said seals.I do not remember whether I had resealed the envelope.I do not know how the remaining currency notes were kept.It is incorrect to suggest that no counterfeit currency was recovered from the accused".Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 54 of 57109. PW-17 fails to explain how he knew that Rs.27,000 which he had taken from there were the fake currency notes and that the rest of the amount was of counterfeit.Ms. Deepa, Assistant Director FSL Rohini (PW-17) stated that she received the notes (29 notes of 1000 each, 27 recovered from A-1 and 2 from A-2) in loose condition.This is again a serious lapse on the part of the prosecution.While one mobile phone seized from A-3 was shown to belong to him, the prosecution failed to connect the mobile phones recovered from A-1 and A-2 with them.The relevant records show who the subscriber to the SIM was but not whose photo was on the customer application.Those subscribers were not examined as witnesses.It appears to the Court that the trial Court proceeded essentially on the basis of the intercepted conversations and the transcripts of those conversations and therefore overlooked the serious lacunae as far as the other evidence is concerned.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 55 of 57It is seen that the trial Court discarded the evidence of A-2 that the motorcycle was seized from the parking lot.It noted that in his bail application A-2 took a stand different from what he stated in his statement under Section 313 Cr PC.In his bail application, he claimed that up to the Lal Qila signal, he himself drove the motorcycle following SI Ramesh Sharma and thereafter he was forced to accompany them in a car.Finding these pleas to be to be contrary, the trial Court drew an adverse inference against him.The Court finds this approach of the trial Court to be an unsafe one to adopt in a criminal case where an accused has a fundamental right against self- incrimination.Apart from saying that it was perhaps thrown away by the accused, there appears to be no effort made to recover the key from near the place of interception.When viewed in the background of the totality of the prosecution case, this appears to be a significant lacuna.Each of the above aspects when considered separately may not be sufficient by themselves to create a doubt about the case of the prosecution, but when viewed in totality, the prosecution evidence cannot be said to inconsistent with the innocence of the accused and point unmistakably to their guilt.The records be returned to the trial Court forthwith.

Relevant sections: Section 120B in The Indian Penal Code