CRL.REV.P. 428/2008 1 REPORTABLE * IN THE HIGH COURT OF DELHI AT NEW DELHI + CRIMINAL REVISION PETITIOIN No. 428 OF 2008 Reserved on: 27th August, 2010 Date of decision: 10th September, 2010 STATE ..... Petitioner Through Mr. Sanjeev Bhandari, Additional Standing Counsel for the State along with Inspector Ramesh Lamba, Special Branch. versus MEHRUNISA & ORS. ..... Respondents Through Ms. Anita Abraham, Advocate for respondent No. 1. CORAM: HON'BLE MR. JUSTICE SANJIV KHANNA 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not ? YES 3. Whether the judgment should be reported in the Digest ? YES SANJIV KHANNA, J.: 1. Learned trial court vide order dated 3rd April, 2008 has discharged Mehrunisa- respondent No. 1 herein recording as under:- “6. So far as accused Smt. Mehrunisa is concerned, the evidence relied on by the prosecution is the CD in which she was allegedly possessing the bag which was recovered from possession of accused Mohd. Jameel. I am unable to agree with ld. Addl.P.P. It is no doubt true that the paper card slip did contain the name and other particulars of accused Smt. Mehrunisa and it was for her to explain yet the evidence of handing over of the bag by Smt. Mehrunisa to any of the accused is missing. Involvement of any other person other than Smt. Mehrunisa in making use of this particular bag, cannot be ruled out. Therefore, there is no prima facie case against her. If the bag contained counterfeit currency notes, the same would have been found on her arrival in India as the bag must have been checked.” (emphasis supplied) CRL.REV.P. 428/2008 2 2. The case of the prosecution is that on 25th June, 2007 on the basis of information recorded in writing in the Daily Diary Register, three persons with bags were searched near Commossum Restaurant, Nizamuddin Railway Station, New Delhi. In a large bag contained counterfeit Indian currency notes of Rs.1,000/- and Rs.500/- denominations amounting to Rs. 18.74 lacs. These had been concealed in the cavity of the bag. In fact they were rolled inside the silk thread spool to conceal them. The bag was found to be in possession of one Mohd. Naim from whom counterfeit currency notes of face value Rs.50,000/- were recovered. From the bag in possession of Mohd. Jameel, counterfeit Indian currency of Rs.13.76 lacs was recovered. A third person involved and arrested was Mohd. Muslim. In all counterfeit Indian currency of Rs.33 lacs was recovered from the three of them. 3. It is alleged by the State that the first bag had a yellow coloured paper card slip of North-Western Railway, Jodhpur Division, Thar Link Express 4889/4890 in the name of the respondent No. 1 with ticket No.6716/3, date of journey 23rd June. 4. It is stated by the prosecution that after recovery of the said counterfeit Indian currency, the yellow coloured paper card slip and on the basis of the leads given by the accused, the police started investigation. The police were able to retrieve a CD recorded by the GRP, Jodhpur. The CD shows the respondent No. 1 herein-Mehrunisa crossing the custom barrier after coming back to India in Thar Link Express on 23rd June, 2007. 5. Learned counsel appearing for the respondent No. 1 had disputed the identity of the respondent No. 1 in the said CD. She was permitted to see the CD on the computer available in the Court. Learned counsel for the State was subsequently asked to ascertain and pin point the presence of the respondent No. 1 in the said CD along with the bag, which it is alleged was subsequently seized on 25th June, 2007. Learned counsel for the State identified the respondent No. 1 in the said CD. As some doubt was expressed by the learned counsel for the respondent No. 1 about the physical appearance and identity of the respondent No. 1 in the CD, the respondent No. 1 was also asked to appear in the Court. The CD reveals that the respondent No. 1 was photographed/filmed crossing the Customs barrier along with a bag of yellow-green colour. The CD does not show that any physical examination or checking of the bag was done by the Customs. 6. Learned counsel for the respondent No. 1 submitted that even if the CRL.REV.P. 428/2008 3 bag is the same, this does not prove and establish that the respondent No. 1 was aware that she was carrying counterfeit Indian currency from Pakistan to India or that she was involved in the said crime. 7. The charge sheet records the alleged modus operandi adopted by the three accused to smuggle in counterfeit Indian currency from Pakistan. It is stated that the accused were taking help of third persons, who are ready and willing to go to Pakistan and bringing back counterfeit currency. The charge sheet mentions the modus operandi adopted by the three accused and the role of Mehrunisa as under:- “….In first week of June 07, he (Jamil) and Naim @ Nadeem arranged two ladies sawaris namely Reshma and Mehrunisha. He along with Naim @ Nadeem and lady passengers visited Jodhpur two-three times and arranged their tickets for Pakistan by Thar Link Express on 02.06.07. He sent cosmetic items to Pakistan through them. He along with ladies Sawaris and Mohd. Naim went to Jodhpur Rajasthan and dropped them in Thar Link Express train going to Pakistan. Thereafter Shahid told him that he had booked tickets for both passengers for 22.06.07 and the savari was bringing consignment. So he sent Naim @ Nadeem to Jodhpur to receive the savaries and also gave one mobile phone to Naim having mobile number 9891010537 for communication. Naim was in need of money, so he asked Naim to keep Rs.50,000/- from the consignment received through savaries. Naim went to Jodhpur by train, on 24.06.07, Naim informed him from Jodhpur on his mobile phone that he had received both passengers/savaries and the consignment and was coming back to Delhi by Intercity Express. On 25.06.07 morning, Naim and both lady savaries arrived at Old Delhi Railway Station and Naim called him on his mobile phone, he directed Naim to let off both lady savaries after paying them some money and to meet him at Nizamuddin Station in the evening at 5 PM, where he went with his brother Muslim to receive the consignment from Naim but all of them were apprehended red handed while in possession of recovered fake currency. He disclosed that he used to stay in Hotel Gulmohar located at Railway Station Jodhpur, Rajasthan during his visits to Jodhpur in the name of Wasim. During interrogation accused revealed that other code name of Shahid was Raja. CRL.REV.P. 428/2008 4 IO also interrogated accused Mohd Naim @ Nadeem and recorded his disclosure statement. He disclosed that his cousin Mohd Jamil @ Bhura @ Wasim, who was engaged in procuring Indian fake currency through passengers going to Pakistan and was residing at Bhalaswa Dairy, Delhi asked him to assist him in fake currency business in lieu of huge profit to which he agreed. He was working with Jamil for last four months. Jamil trained him in the racket of procuring fake Indian currency from Pakistan and circulating the same in India. Jamil trained him in arranging sawaries going to Pakistan and started keeping him on front. Around three months back Jamil had sent him with one lady and his son Sonu to IGI Airport to board them in a flight going to Pakistan. These passengers brought fake currency from Pakistan via Rajasthan border and he received Rs.20,000/- in this transaction. He along with Jamil went to Kabutar market, Jama Masjid, Delhi where they arranged two passengers for Pakistan, namely Reshma r/o Rampur Maniharan, Saharanpur and Mehrunisa r/o Baraut. They took their passports and arranged their tickets to Pakistan via Rajasthan border in Thar Link Express. He along with Jamil went to Jodhpur with Mehrunisa and Reshma and boarded them in Thar Link Express on 02.06.07. Jamil had told him that the consignment of fake currency was to be procured through Mehrunisa as she was quite old and nobody would doubt her, so he had told Mehrunisa about the consignment of fake currency before boarding train to Pakistan, which was to be procured by her from Pakistan safely and directed her not to disclosed this fact before Reshma. After some days Jamil told him that Mehrunisa and Reshma were coming back to India at Jodhpur by train on 23.06.07, so he went to Jodhpur to receive them. He went to Jodhpur by train, Jamil had given him one mobile phone while going to Jodhpur to remain in touch with him, which was recovered from him at the time of apprehension. He reached Jodhpur on 23.06.07 and stayed at hotel Gulmohar in the name of Nadeem, which code name was given to him by Jamil. On 24.06.07 Mehrunisa and Reshma came back to Jodhpur via Munabao border from where he received them, Mehrunisa had given him one bag in which fake Indian currency notes were concealed in the silk thread rolls. Since the bag was quite heavy, he put nearly half of the CRL.REV.P. 428/2008 5 thread roll packets in his own bag and came back to Delhi with Mehrunisa and Reshma. On the way TT had given them reservation on their ticket. On the way he broke opened three thread rolls in which fake Indian currency notes worth Rs.54,000/- in the denomination of Rs.1,000/- each were recovered, out of which he gave Rs.2,000/- each to Mehrunisa and Reshma and remaining kept by him, which were recovered from him at the time of apprehension. After reaching at Old Delhi Railway Station, he called Jamil on his mobile phone, who directed him to let off Mehrunisa and Reshma and to meet him at Nizamudin Station in the evening at 5 PM, where they were apprehended.” 8. As per the aforesaid charge sheet two ladies, viz., Reshma and Mehrunisa- respondent No. 1 herein, along with accused Naim @ Nadeem had visited Jodhpur before they left for Pakistan and the said accused had arranged for their train ticket to Pakistan by Thar Link Express on 2nd June, 2007. Thereafter, both of them returned to India vide tickets booked for journey on 22nd June, 2007. Naim again went to Jodhpur and on 24th June, 2007 received Reshma and Mehrunisa, with the consignment. On 25th June, 2007, Naim along with two ladies came back to Old Delhi Railway Station. During this time Naim was in touch with others on the mobile telephone No. 9891010537. 9. As per the charge sheet, the respondent No. 1-Mehrunisa was assigned the role and task to procure the counterfeit Indian currency from Pakistan to India as she was old and nobody would suspect that she could be carrying on counterfeit Indian currency while coming back from Pakistan. 10. The State has relied upon the reservation slip for booking of train tickets of Mehrunisa and Reshma. It is stated that this in the reservation slip telephone No. 9873072066 is mentioned. It is stated that this telephone number belongs to Mohd. Jameel, one of the accused, who were arrested with the counterfeit Indian currency on 25th June, 2007. The alleged reservation slip was in respect of two passengers, viz., the respondent No. 1-Mehrunisa and Reshma. As per the prosecution case both of them had travelled together from India to Pakistan and also travelled back together from Pakistan to India. 11. It is alleged by the State that call details from mobile No. CRL.REV.P. 428/2008 6 9811761991 for the period 15th May, 2007 to 24th June, 2007 have been obtained from the service provider. Accused Mohd. Jameel had made calls from Rajasthan during his visits to Jodhpur and in connection with and for arranging the visit of the respondent no.1 -Mehrunisa to Pakistan. The State also relies on the calls received to and from Pakistan and to the accused Shahid who is, it is alleged, based in Pakistan. 12. In view of the aforesaid averments in the charge sheet and the evidence relied upon by the prosecution, it is alleged:- (1) The three accused persons namely Mohd. Naim, Mohd. Jameel and Mohd. Muslim were caught with counterfeit Indian currency of Rs.33 lacs on 25th June, 2007. The said accused had adopted modus operandi of bringing in counterfeit Indian currency through third persons who were sent to Pakistan. Mehrunisa was roped in to bring counterfeit Indian currency from Pakistan. (2) Mehrunisa went to Pakistan from Jodhpur by train on 2nd June, 2007 and came back to India on 24th June, 2007. The accused had arranged and provided for the visit to Pakistan, in form of train tickets, visa charges etc. (3) On both the dates, i.e., on 2nd June, 2007 and on the return journey on 24th June, 2007 Mohd. Naim @ Nadeem had gone to Jodhpur to see them off and pick them. (4) On the reservation slip on the basis of which train tickets were issued, telephone No. 9873072066, which belongs to accused Mohd. Jameel is mentioned. (5) On 25th June, 2007, the bag which was brought in by the respondent No. 1-Mehrunisa from Pakistan was found to be in possession of three accused with counterfeit Indian currency. (6) This bag is visible in the CD when the respondent no.1Mehrunisa crossed the Customs barrier. (7) Telephone call details of number 9811761991 of accused Mohd. Jameel are relied upon. 13. Section 120A, IPC reads “120-A. Definition of criminal conspiracy. — When two or more persons agree to do, or cause to be done,— (1) an illegal act, or CRL.REV.P. 428/2008 7 (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation.—It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.” 14. In Halsbury’s Laws of England1, the English law as to conspiracy has been defined thus: “58. Meaning of conspiracy.—Conspiracy consists in the agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means. It is an indictable offence at common law, the punishment for which is imprisonment or fine or both in the discretion of the court. The essence of the offence of conspiracy is the fact of combination by agreement. The agreement may be express or implied, or in part express and in part implied. The conspiracy arises and the offence is committed as soon as the agreement is made; and the offence continues to be committed so long as the combination persists, that is until the conspiratorial agreement is terminated by completion of its performance or by abandonment or frustration or however it may be. The actus reus in a conspiracy is the agreement to execute the illegal conduct, not the execution of it. It is not enough that two or more persons pursued the same unlawful object at the same time or in the same place; it is necessary to show a meeting of minds, a consensus to effect an unlawful purpose. It is not, however, necessary that each conspirator should have been in communication with every other.‟ ” 15. Thus one of the elements of criminal conspiracy is an agreement or understanding between two or more accused persons whereby they become definitely committed to cooperate for accomplishing the object by the means embodied in the agreement or by any effectual means. For an offence under Section 120B, IPC the prosecution need not necessarily prove that the perpetrators expressly agreed to do or caused to be done an 1 4th Edn., Vol. 11, p.44, para 58 CRL.REV.P. 428/2008 8 illegal act; the agreement may be proved by necessary implication. In cases of conspiracy direct evidence is rarely available. Circumstantial evidence is normally relied upon. Therefore circumstances proved before, during and after the occurrence have to be considered to decide whether there was an agreement, expressed or implied. 16. In Yogesh vs. State of Maharashtra, (2008) 10 SCC 394 it has been held : “20. The basic ingredients of the offence of criminal conspiracy are: (i) an agreement between two or more persons; (ii) the agreement must relate to doing or causing to be done either (a) an illegal act; or (b) an act which is not illegal in itself but is done by illegal means. It is, therefore, plain that meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means is sine qua non of criminal conspiracy. Yet, as observed by this Court in Shivnarayan Laxminarayan Joshi v. State of Maharashtra2 a conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the common intention of the conspirators. Therefore, the meeting of minds of the conspirators can be inferred from the circumstances proved by the prosecution, if such inference is possible. 21. In Mohd. Usman Mohammad Hussain Maniyar v. State of Maharashtra3 it was observed that for an offence under Section 120-B, the prosecution need not necessarily prove that the perpetrators expressly agree to do and/or cause to be done the illegal act, the agreement may be proved by necessary implication. 22. In Kehar Singh v. State (Delhi Admn.)4 the gist of the offence of the conspiracy has been brought out succinctly in the following words: (SCC p. 731, para 271) “271. … „The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se, enough.‟ ” 23. Again in State of Maharashtra v. Som Nath Thapa5 a three-Judge Bench of this Court held that to establish a charge of conspiracy knowledge about 2( 1980 ) 2 SCC 465 3 ( 1981 ) 2 SCC 443 4 ( 1988 ) 3 SCC 609 5(1996 ) 4 SCC 659 CRL.REV.P. 428/2008 9 indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that a particular unlawful use was intended, so long as the goods or service in question could not be put to any lawful use. 24. More recently, in State (NCT of Delhi) v. Navjot Sandhu6, making exhaustive reference to several decisions on the point, including State v. Nalini7 Venkatarama Reddi, J. observed thus: (Navjot Sandhu case, SCC p. 689, para 97) “97. Mostly, conspiracies are proved by circumstantial evidence, as the conspiracy is seldom an open affair. Usually both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused (per Wadhwa, J. in Nalini case at p.516). The well-known rule governing circumstantial evidence is that each and every incriminating circumstance must be clearly established by reliable evidence and „the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible‟ (Tanviben Pankajkumar case8, SCC p. 185, para 45). G.N. Ray, J. in Tanviben Pankajkumar observed that this Court should not allow suspicion to take the place of legal proof.” 25. Thus, it is manifest that the meeting of minds of two or more persons for doing an illegal act or an act by illegal means is sine qua non of the criminal conspiracy but it may not be possible to prove the agreement between them by direct proof. Nevertheless, existence of the conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. But the incriminating circumstances must form a chain of events from which a conclusion about the guilt of the accused could be drawn. It is well settled that an offence of conspiracy is a substantive offence and renders the mere agreement to commit an offence punishable, even if an offence does not take place pursuant to the illegal agreement.” 17. On the point of charge, scrutiny of allegations and evidence relied upon by the prosecution is made to decide whether there are sufficient grounds to proceed against the accused. The object is not to decide the case on merits after evaluating the possible defense and make judgmental assessment of the prosecution evidence; but to decide whether there are sufficient grounds for the court to proceed with the trial or not. Probative value of the material is not gone into in depth. Materials brought on record 6 (2005)11SCC600 7 (1999) 5 SCC 253 8 1997 ) 7 SCC 156 CRL.REV.P. 428/2008 10 by the prosecution have to be accepted as true at this stage. The material is evaluated on the face value to decide whether it discloses existence of all ingredients constituting the alleged offence. At this stage even a strong suspicion founded on material which leads the court to form presumptive opinion on existence of factual ingredients constituting the offence alleged would justify framing of charge. If the evidence which the prosecution proposes to adduce even if fully accepted, before it is challenged in cross examination or rebutted by defense evidence, does not show that the alleged offence was committed then there is no sufficient ground for proceeding with the trial. The accused is entitled to discharge. The reasoning in the order dated 3rd April, 2008 quoted above accepts that material on record requires explanation from respondent No.1 but she has been discharged. 18. In view of the aforesaid evidence and allegations, it cannot be said that prima facie case is not made out against the respondent no.1- Mehrunisa for offences under Sections 489A, 489B, 489C and 120B of the IPC. 19. As far as offence under Section 121A IPC is concerned, the two provisions Sections 121 and 121A read:, “121. Waging or attempting to wage war or abetting waging of war against the Government of India.—Whoever wages war against the Government of India, or attempts to wage such war, or abets the waging of such war, shall be punished with death, or imprisonment for life, and shall also be liable to fine. Illustration A joins an insurrection against the Government of India. A has committed the offence defined in this section. 121-A. Conspiracy to commit offences punishable by Section 121.—Whoever within or without India conspires to commit any of the offences punishable by Section 121, or conspires to overawe, by means of criminal force or the show of criminal force, the Central Government or any State Government, shall be punished with imprisonment for life, or with imprisonment of either description which may extend to ten years, and shall also be liable to fine. CRL.REV.P. 428/2008 11 Explanation.—To constitute a conspiracy under this section, it is not necessary that any act or illegal omission shall take place in pursuance thereof.” 20. Section 121- A deals with two kinds of conspiracies: (i) Conspiring within or outside India to commit any of the offences punishable by Section 121 IPC; (ii) Conspiring to overawe the Government by means of Criminal force or the show of criminal force. The essence of the offence under Section 121-A of the Code is the agreement to do all or any of the unlawful acts mentioned in the Section 121, IPC. 21. The Supreme Court has examined the expression “waging war” in Sections 121/121A IPC in