Sections 120B, 419, 120B r/w 420, 468 and 471 IPC and Section 12(1) of Passport Act, 1967 - Additional charges than the permitted offences under Extradition proceedings - Accused was brought under Extradition order from Portuguese to India - order permitted only other sections except sec.419 and 468 I.P.C. - Later Portuguese courts terminate the Extradition order due adding of additional charges - But no work was carried out through administrative side - Apex court in another case of Accused Abu Salem in Mumbai held that Extradition order is in force still as no executive orders are passed and further held that lesser offence can be added than the major offence than the Extradition permitted proceedings - Their lordships of High court held that sec.468 is a major offence punishable up to 7 years than the permitted sections in extradition order and as such the punishment under it should be set aside and where as sec.419 is a lesser offence , so it can be added and can be considered as additional charge , no thing can be found wrong in the order of trial court - allowed the appeal partly to the extent of sec.468 of IPC = Abu Salem Abdul Qayoom Ansari @ Abdul Salem..... Appellant/Accused No.1 State of Andhra Pradesh Rep. by its Special P.P. for CBI,High Court of A.P, Hyderabad .... Respondent = 2014 (Feb.Part ) judis.nic.in/judis_andhra/filename=10928
Sections 120B, 419, 120B r/w 420, 468 and 471 IPC and Section 12(1) of Passport Act,
1967 - Additional charges than the permitted offences under Extradition proceedings - Accused was brought under Extradition order from Portuguese to India - order permitted only other sections except sec.419 and 468 I.P.C. - Later Portuguese courts terminate the Extradition order due adding of additional charges - But no work was carried out through administrative side - Apex court in another case of Accused Abu Salem in Mumbai held that Extradition order is in force still as no executive orders are passed and further held that lesser offence can be added than the major offence than the Extradition permitted proceedings - Their lordships of High court held that sec.468 is a major offence punishable up to 7 years than the permitted sections in extradition order and as such the punishment under it should be set aside and where as sec.419 is a lesser offence , so it can be added and can be considered as additional charge , no thing can be found wrong in the order of trial court - allowed the appeal partly to the extent of sec.468 of IPC =
Abu Salem against the judgment dated 18-11-2013 in C.C.No.3 of 2006 passed by
III Additional Special Judge for CBI cases, Hyderabad, whereunder the learned
Judge convicted him for the offences under Sections 120B, 419, 120B r/w 420, 468
and 471 IPC but acquitted him of the charge under Section 12(1) of Passport Act,
1967 and sentenced:
(i) to suffer RI for a period of seven years and pay fine of Rs.1,000/- and in
default SI for three months for the charge u/s.120B;
(ii) to suffer RI for a period of one year for the charge u/s.419 IPC;
(iii) to suffer RI for a period of seven years and pay fine of Rs.1,000/- and in
default SI for three months for the charge u/s.120B r/w 420 IPC.
(iv) to suffer RI for a period of one year and pay fine of Rs.1,000/- and in
default SI for three months for the charge u/s.468 IPC;
(v) to suffer RI for a period of one year for the charge u/s.471 IPC
All the substantive sentences were directed to run concurrently. =
So far as A1 is concerned, the case against him was split up
from main case-C.C.No.3/2005 -
One of the Investigating
Officers obtained letter Rogatory from trial Court to Portugal authorities on
26-12-2005. Pursuant to letter Rogatory, he received reply to letter Rogatory
with copies of records from Portugal through Interpol.
Thereafter, the
Investigating Officer filed the charge sheet for the offences under Sections
120B r/w 420, 468, 471 r/w 468 IPC and 12(1) (b) and 12(2) of Passport Act, 1967
and 13(2) r/w 13(1) (d) of Prevention of Corruption Act, 1988. Since, at the
time of filing charge sheet A1 and A3 were detained in Portuguese, Lisbon they
were brought to India on 11-11-2005 under extradition proceedings dated
28-03-2003.=
Secondly, learned counsel argued that in view of the order of Honourable
Supreme Court of Justice, Portugal, the Extradition Order dated
28-03-2003 of the Government of Portuguese since stood terminated, the trial
Court had no jurisdiction to proceed with the trial and hence the conviction and
sentence passed by it are without jurisdiction.
c) Thirdly, learned counsel argued that as per Extradition Proceedings dated
28-03-2003 issued by Ministry of Justice, Portugal, the Sovereign Government of
Portugal while extraditing the appellant/A1 to India has consented for his trial
in the present case for the offences under Sections 120B, 420 and 471 IPC only,
but none else. India being a requesting State shall abide by the Extradition
Order in view of Section 21 of Extradition Act, 1962. However, in gross
infraction of Section 21(c) of the said Act, he was additionally tried,
convicted and sentenced for the offences under Sections 419 and 468 IPC and,
therefore, the entire trial is vitiated. =
Secondly, learned Spl.S.C. argued that the contention of appellant that in
view of the termination order passed by the Supreme Court of Justice, Portugal,
the Extradition Order dated 28.03.2003 was terminated and thereby his trial is
without jurisdiction is farfetched in view of the clarification already given by
Hon'ble Apex Court in the decision reported in Abu Salem Abdul Qayoom Ansari vs.
Central Bureau of Investigation13.
c) Thirdly, learned Spl.S.C. argued that the trial Court has not committed
any error in trying the appellant/A1 for the offences under Sections 419 and 468
IPC though those offences were not specifically mentioned in the Extradition
Order. He argued that there is no violation of Section 21 of Extradition Act,
1962 either. He submitted that the facts presented by the Indian Government
before Portugal Government include those two offences apart from the offence for
which he was extradited. Further those two offences are "lesser offences" than
the offences for which he was extradited. As such the trial Court was right in
trying him for those two offences along with other offences for which he was
extradited. He relied upon the decision reported in Abu Salem Abdul Qayoom
Ansari vs. State of Maharashtra14 and argued that when the present appellant/A1
made a similar contention against the additional charges framed against him by
the Designated Court, Mumbai, Hon'ble Apex Court turned down his contention and
held that an accused can be indicted not only for the offence for which he has
been extradited but also for the additional offences which provide for lesser
punishment than that of those which are specifically mentioned in the
extradition order.
2) Whether the trail of appeallant/A1 by the trial Court is without jurisdiction
in view of the alleged termination of extradition order dated 28-03-2003?
On this point already the Supreme Court of India held thus:
"The Constitutional Court of Portugal has categorically held that Portuguese law
does not provide for any specific consequence for violation of the Principle of
Speciality and their findings may not be construed as a direction to the Union
of India to return the Appellant to Portugal but shall only serve as a legal
basis for the Government of Portugal, should it choose to seek the return of the
Appellant to Portugal through political, or diplomatic channels, which has not
been done till date according to the statement made by learned Attorney General.
In view of the above discussion, it is vividly clear that the order of
Extradition dated 28-03-2003 still stands valid and effective in the eyes of
law. Accordingly, the second question stands responded."
So, the jurisdictional issue is concerned, the Honourable Supreme Court of
India in the very case of appellant/A1 has made it clear that the extradition
order dated 28-03-2003 still stands valid and effective in the eyes of law for
the reasons mentioned as above. Therefore, the appellant/A1 cannot agitate again
that the extradition order was terminated by the Courts at Portugal and his
trial in India is without jurisdiction. This point is answered accordingly.
3) Whether the trial of appellant/A1 for the offences under Sections 419 and 468
IPC is in violation of Extradition Order dated
28-03-2003 and Section 21 of Extradition Act, 1962?
The issue is no more res integra, since the Honourable Apex Court in its
judgment in Abu Salem Abdul Qayoom Ansari vs. State of Maharashtra (vide 14
supra) has given clarification. The background history of said judgment and also
the subsequent judgment of the Supreme Court of India were already narrated by
me in point No.2 supra. Hence, the ratio of the said judgment has to be applied
to the present case. The ratio in the Supreme Court judgment (vide 14 supra) is
to the effect that a fugitive/accused can be indicted not only for the offences
for which he was extradited but also for the additional offences which provided
for lesser punishment than that of those which are specifically mentioned in the
extradition order. What is lesser offence has been explained in para-29 of the
judgment. It says:
"Lesser offence" means an offence which is made out from the proved facts and
provides lesser punishment, as compared to the offences for which the fugitive
has been extradited.
b) When the above ratio is applied to the two offences under Sections 419 and
468 IPC, Section 419 IPC is undoubtedly a lesser offence than extradited offence
in terms of punishment. However, Section 468 IPC is concerned, the punishment
provided for that offence is 7 years and also fine. As such, the said offence is
not a lesser offence than any of the extradited offences in terms of punishment.
Though it is not a greater offence in terms of punishment, it is equivalent to
Section 420 IPC in terms of punishment.
The Trial Court defended the additional charges on the ground that the maximum
punishment for those offences is not more than 7 years and they are not visited
with death sentence. I am afraid, this observation is not correct in the light
of Supreme Court judgment. It must be said that penal provisions require strict
interpretation. Having regard to it, I hold that trial of appellant/A1 for the
offence under Section 468 IPC is not legally valid and so the conviction and
sentence for the said offence liable to be set aside. This point is answered
accordingly.
12) So, in view of discussion on points 1 to 3 supra, it is held that the
appellant/A1 was rightly convicted and sentenced by the trial Court for all but
for the offence under Section 468 IPC.
In the result, this Criminal Appeal is partly allowed and while confirming
the conviction and sentence passed by the trial Court against appellant/A1 for
the offences under Sections 120B, 420, 419 and 471 IPC, conviction and sentence
passed by it for the offence under Section 468 IPC is hereby set aside.
2014 (Feb.Part ) judis.nic.in/judis_andhra/filename=10928
THE HON'BLE SRI JUSTICE U.DURGA PRASAD RAO
CRIMINAL APPEAL No.1062 of 2013
20-02-2014
Abu Salem Abdul Qayoom Ansari @ Abdul Salem..... Appellant/Accused No.1
State of Andhra Pradesh Rep. by its Special P.P. for CBI,High Court of A.P,
Hyderabad .... Respondent
Counsel for Appellant: Sri Pradeep Kumar. S and
Sri S. Pasbola.
Counsel for Respondent: Sri P. Kesava Rao,
Special Standing Counsel for CBI
<Gist:
>Head Note:
?Cases referred:
1) 2005 SCC (Crl) 1715
2) 1995 SCC (Crl) 215
3) 1999 SCC (Crl) 127
4) 2001 SCC (Crl) 160
5) (2009) 3 SCC (Crl) 66
6) 1997 SCC (Cri) 1004
7) (2001) 4 SCC 516
8) (1988) 3 SCC 609
9) (2011) 1 SCC 284
10) AIR 1961 SC 1762
11) (1996) 4 SCC 659
12) (1987) 2 SCC 17 = AIR 1987 SC 773
13) 2013 (3) ALT (Cri) 385
14) (2011) 11 SC 214 =(2011) 3 SCC (Cri) 125
THE HONOURABLE SRI JUSTICE U.DURGA PRASAD RAO
CRIMINAL APPEAL No.1062 of 2013
Judgment:
This Criminal Appeal is preferred by accused No.1-Abu Salem Qayoom Ansari
@ Abu Salem against the judgment dated 18-11-2013 in C.C.No.3 of 2006 passed by
III Additional Special Judge for CBI cases, Hyderabad, whereunder the learned
Judge convicted him for the offences under Sections 120B, 419, 120B r/w 420, 468
and 471 IPC but acquitted him of the charge under Section 12(1) of Passport Act,
1967 and sentenced:
(i) to suffer RI for a period of seven years and pay fine of Rs.1,000/- and in
default SI for three months for the charge u/s.120B;
(ii) to suffer RI for a period of one year for the charge u/s.419 IPC;
(iii) to suffer RI for a period of seven years and pay fine of Rs.1,000/- and in
default SI for three months for the charge u/s.120B r/w 420 IPC.
(iv) to suffer RI for a period of one year and pay fine of Rs.1,000/- and in
default SI for three months for the charge u/s.468 IPC;
(v) to suffer RI for a period of one year for the charge u/s.471 IPC
All the substantive sentences were directed to run concurrently.
2) The facts which led to file this appeal can be stated thus:
The Inspector of CBI/SPE, Hyderabad laid charge sheet in RC.No.34(A)/2002,
CBI, Hyderabad against altogether 10 accused before the trial Court in which Abu
Salem Qayoom Ansari @ Abu Salem (A1); Sameera Jumari @ Neha Asif Jafari (A2);
Monica Bedi @ Sana Malik Kamal (A3); Chamundi Abdul Hameed (A6); Faizan Hameed
Sultan (A10) were shown as absconders. The charge sheet was taken on file in
C.C.No.3/2005 and NBWs. were issued against A1, A2, A6 and A10.
Later it appears that A3, A5, A7 and A8 were tried by the learned Special Judge
for CBI cases, Hyderabad and sentenced which was upheld by the High Court and
the Supreme Court. So far as A1 is concerned, the case against him was split up
from main case-C.C.No.3/2005 and numbered as CC.No.3/2006 and tried with which
we are concerned now.
3) The prosecution case is thus:
a) A1 to A3 with the assumed names as stated supra, obtained passports from
Regional Passport Office (RPO), Secunderabad during the year 2001 by furnishing
false documents with the connivance of A4-G.Srinivas, passport clerk, (D2
Section) in the office of Superintendent of Police, Kurnool District, Kurnool;
A5-Shaik Abdul Sattar, Head Constable, Special Branch, Kurnool; A6-Abdul Hameed,
unauthorised passport agent of Kurnool. On source information, the Inspector,
CBI, Hyderabad registered a case and issued FIR on 20-09-2002. On the same
facts another case was registered in I Town Police Station, Kurnool on 21-09-
2002 in Cr.No.103/2002 against A4 to A7 for the offences under Sections 417,
420, 120B IPC and Section 12 of Passport Act, 1967 and later on 23-10-2002 the
case was transferred to CBI, Hyderabad.
b) More vividly, A10-Faizan Hameed Sultan owner of M/s.Faizan Enterprises,
Mumbai was involved in recruiting people for jobs abroad.
He gave 10 passport sized photographs of A1 to A3 and their fake names and
documents to A9-Noorullah Abdul Khaleeq and asked him to obtain three passports
for A1 to A3 from Kurnool. A9 has relatives in Kurnool.
He visited Kurnool in March, 2001 and entrusted the work of securing passports
for A1 to A3 to one A6-Ch.Abdul Hameed, an unauthorised passport agent.
c) The further case of the prosecution is that at the instance of A6, A7-
Mohammed Younus,
Mandal Revenue Inspector of MRO Office, Kurnool issued false
residential certificates in the assumed names of A1 to A3
(vide Ex.P11-certified copy of residential certificate of A1).
Further, A6
procured fake transfer certificate purported to have been issued by the Head
Master, ZPP High School, Pedapadu, Kurnool District in the name of A1 (vide
Ex.P17-certified copy of transfer certificate of A1), and
two fake marks sheets
in the names of A2 and A3 purported to have been issued by the Head Master,
Hanuman Higher Elementary School as a proof of their dates of birth.
Later, it
was revealed that transfer certificate was not issued by ZPP High School to A1
and Hanuman Higher Elementary School was not in existence. (vide Ex.P16).
d) It is the further case of the prosecution that after procuring above
documents, A6 got filled passport applications of A1 to A3 through PW1-Abdul
Gaffar, a clerk in Taj Mahal Beedi Company, Kurnool (vide Ex.P1 and P2-certified
copies of passport application and passport registration form of A1). Later they
were filed in RPO, Secunderabad wherefrom personal particulars forms were sent
to the Office of SP, Kurnool for verification of antecedents of the applicants
and the same were received in the Office of SP, Kurnool on 31-05-2001 and 08-06-
2001. A4-G.Srinivas who was dealing Assistant in the Special Branch (known as
D2) handed over the personal particulars of A1, A2 and A3 to A5-S.A.Sattar, who
is a writer/Head Constable in Special Branch instead of to concerned area Head
Constable i.e. PW15-P.Subba Raju for field verification of antecedents.
A5 submitted fake field verification report (vide Ex.P21 and 21A relating to A1)
along with the statement of six fictitious persons as alleged neighbours in
respect of character and conduct of A1 to A3. On receipt of these reports, A4
despatched them to RPO, Secunderabad under the covering letter of SP dated 28-
06-2001 (vide Ex.P19).
e) The further case of the prosecution is that on the strength of these
reports, RPO issued passport No.B5804689 dated 08-08-2001 to A1 in the name of
Ramil Kamil Mallik and two more passports in the assumed names of A2 and A3 and
the same were despatched by speed post to their respective addresses indicated
in the passport applications on 24-08-2001 (vide Ex.P24 and P24A-speed post
booking journal and relevant entry dated 24-08-2001 relating to A1).
f) The passports were received at the head post office through speed post.
Passports of A2 and A3 are concerned, on 23-08-2001 two speed posts containing
passports addressed to the assumed names of A2 and A3 were entrusted to PW18-
Babu Miyan, Postman of beat No.2 for delivery. However, A8-Gokari Sahib,
Postman, Head Post Office, Kurnool approached him and collected those two speed
post articles along with third one by giving his acknowledgements on the
delivery list falsely representing that he knew the addressees and he would
personally deliver the articles while going home.
g) While so, on 27-08-2001 another speed post article containing passport in
the assumed name of A1 was entrusted to A8 for delivery and in turn he delivered
it to one Aslam Khan, Cashier Hotel Elite, Kurnool where A6 was working. A6-
Hameed sent two covers to A9-Noorullah on 23-08-2001 and 27-08-2001 through courier service (vide Ex.P28 Sl.No.254- daily sales register of Professional Couriers).
That is how the crime was perpetrated.
h) The further case of the prosecution is that the Investigating Officer of
the day examined the witnesses at various places, collected documents, obtained
sanction orders for prosecution of accused public servants, A4, A5, A7 and A8
for prosecution under the Prevention of Corruption Act, 1988 from the concerned
authorities. He obtained sample signatures and handwritings of A4, A5, A7 and A8
in the presence of mediators and sent the standard and suspected signatures to
the Government Examiner of Questioned Documents (GEQD) for comparison and
report. He received the handwriting expert opinion. One of the Investigating
Officers obtained letter Rogatory from trial Court to Portugal authorities on
26-12-2005. Pursuant to letter Rogatory, he received reply to letter Rogatory
with copies of records from Portugal through Interpol. Thereafter, the
Investigating Officer filed the charge sheet for the offences under Sections
120B r/w 420, 468, 471 r/w 468 IPC and 12(1) (b) and 12(2) of Passport Act, 1967
and 13(2) r/w 13(1) (d) of Prevention of Corruption Act, 1988. Since, at the
time of filing charge sheet A1 and A3 were detained in Portuguese, Lisbon they
were brought to India on 11-11-2005 under extradition proceedings dated
28-03-2003.
i) The case against A1 was split up from the main case in C.C.No.3/2005 and
on his appearance the trial Court framed charges under Sections 120B, 120B r/w
420, 468, 471 and 419 IPC and under Section 12(1) of Passport Act, 1967 and
trial was conducted.
j) During trial PWs.1 to 39 were examined and Exs.P1 to P51 were marked on
behalf of the prosecution.
k) A perusal of the judgment would show that trial Court considering the
evidence placed on record came to the conclusion that A1 applied for passport
with fake identities and fake address with his real photos and with the
conspiracy of revenue, police and postal employees could secure the passport.
In this regard, trial Court rejected the argument of A1 that the prosecution
could not prove by cogent evidence that A1 had submitted passport application
and obtained passport with the conspiracy of other accused. The trial Court held
that A1 is concerned, he was the ultimate beneficiary in obtaining passport with
false identify, false address, false educational and residence certificate which
resulted in issuing passport and the other accused entered into criminal
conspiracy and played their roles. Thus, the trial Court held that prosecution
could able to prove the guilt of A1 for the offence under Section 120B, 419,
120B r/w 420, 468 and 471 IPC. However, the trial Court acquitted A1 for the
charge under Section 12 of Passport Act, 1967.
Hence, the appeal.
3) Heard arguments of Sri S. Pasbola and Mr.S.Pradeep Kumar, learned counsel
for appellant and Sri P.Kesava Rao, learned Special Standing Counsel for CBI
(Spl.S.C.)
4) Vehemently fulminating the judgment of trial Court, learned counsel for
appellant submitted the following points.
a) Firstly, he argued that prosecution utterly failed to establish the
criminal nexus between A1 and other accused. It failed to establish the criminal
conspiracy among the accused in procuring passport for A1 with false
particulars.
Expatiating it, learned counsel would argue that no evidence is placed on record
to show that appellant/A1 knew the other accused and they worked for him under
his instructions and he met or contacted them to file an application for
obtaining passport and instructed them to procure residential certificate and
transfer certificate with bogus particulars. Learned counsel submitted that
prosecution failed to establish that appellant/A1 signed on Exs.P1 and P2
passport applications, he either personally or through his authorised agent
submitted those applications in RPO, Secunderabad, he personally applied for
residential certificate and transfer certificate with false information and most
importantly he received the passport from A9 or A10 after it was despatched by
A6. The prosecution equally failed to establish either he was in possession of
the passport or travelled abroad using the same. The passport which he allegedly
procured by dubious methods was never found in his possession which was evident
from the answers furnished to the Investigating Officer by the Portugal
authorities in the letter Rogatory and the prosecution failed to produce the
said passport in the Court. Thus, except for few photos with his faint
resemblances found on Ex.P1 and P2 passport applications, which is a weak piece
of evidence, absolutely there is no other evidence to connect appellant/A1 with
the case. In this regard learned counsel argued that no parallel can drawn
between the case of appellant/A1 and the case of A3-Monica Bedi, since the facts
in that case are different inasmuch as she was caught travelling with the
passport which she obtained by dubious methods.
He argued that when the prosecution rests on circumstantial evidence to
prove the criminal conspiracy among A1 and other accused, it must be able to
prove all the suspicious circumstances like a chain and that must unerringly
establish the guilt of accused giving no scope for his innocence. He submitted
in this case vital missing link is the connection between A1 and other accused.
He relied upon the following decisions on the guidelines for proof of criminal
conspiracy.
1. State (NCT of Delhi) v. Navjot Sandhu @ Afsan Guru1
2. P.K.Narayanan v. State of Kerala2
3. Sanjiv Kumar v. State of H.P.3
4. Saju v. State of Kerala4
5. Baldev Singh v. State of Punjab5
6. Tanviben Pankajkumar Divetia v. State of Gujarat6
b) Secondly, learned counsel argued that in view of the order of Honourable
Supreme Court of Justice, Portugal, the Extradition Order dated
28-03-2003 of the Government of Portuguese since stood terminated, the trial
Court had no jurisdiction to proceed with the trial and hence the conviction and
sentence passed by it are without jurisdiction.
c) Thirdly, learned counsel argued that as per Extradition Proceedings dated
28-03-2003 issued by Ministry of Justice, Portugal, the Sovereign Government of
Portugal while extraditing the appellant/A1 to India has consented for his trial
in the present case for the offences under Sections 120B, 420 and 471 IPC only,
but none else. India being a requesting State shall abide by the Extradition
Order in view of Section 21 of Extradition Act, 1962. However, in gross
infraction of Section 21(c) of the said Act, he was additionally tried,
convicted and sentenced for the offences under Sections 419 and 468 IPC and,
therefore, the entire trial is vitiated.
He relied upon the following decision
on the principle that a fugitive tried on extradition decree cannot be tried in
respect of an offence which does not form part of decree.
Daya Singh Lahoria v. Union of India7
He thus prayed to allow the appeal.
5 a) Per contra, supporting the judgment of the trial Court learned Spl.S.C.
firstly argued that the prosecution by overwhelming evidence established the
conspiracy of different accused in procuring the passport for A1 in his assumed
name. The appellant/A1 could not shatter the evidence on record in his cross-
examination to establish that passport was not procured by dubious methods. His
only contention was that he has nothing to do with the alleged conspiracy among
different accused in procuring passport and he was not all the holder of the
said passport. Conspiracy being hatched in secrecy, it can only be established
by circumstantial evidence and in this case the prosecution could establish two
main circumstances: 1) that a passport was obtained by illegal means and 2) that
the said passport was obtained for the benefit of appellant/A1. That being so,
learned standing counsel would argue, being the beneficiary of criminal act, the
appellant/A1 cannot plead ignorance by contending that he is absolutely nothing
to do with the conspiracy among other accused. He could not even remotely
suggest or establish that the other accused or some one else hatched a plan to
implicate him in a case and that was why they took all the pains to procure the
passport in his assumed name. He submitted that when the appellant/A1 failed to
show such preponderance of probability, he can be presumed as part of the
conspiracy and he can be held liable for the acts of co-conspirators because he
is the sole beneficiary of illegal fruit. He relied upon the following decisions
on the appreciation of circumstantial evidence on criminal conspiracy:
1. Kehar Singh v. State (Delhi Admn.)8
2. Monica Bedi v. State of A.P.9
3. State (NCT of Delhi) v. Navjot Sandhu @ Afsan guru( 1 supra)
4. Major E.G. Barsay v. State of Bombay10
5. State of Maharashtra v. Som Nath Thapa11
6. State of H.P. v. Krishan Lal Pardhan12
b) Secondly, learned Spl.S.C. argued that the contention of appellant that in
view of the termination order passed by the Supreme Court of Justice, Portugal,
the Extradition Order dated 28.03.2003 was terminated and thereby his trial is
without jurisdiction is farfetched in view of the clarification already given by
Hon'ble Apex Court in the decision reported in Abu Salem Abdul Qayoom Ansari vs.
Central Bureau of Investigation13.
c) Thirdly, learned Spl.S.C. argued that the trial Court has not committed
any error in trying the appellant/A1 for the offences under Sections 419 and 468
IPC though those offences were not specifically mentioned in the Extradition
Order. He argued that there is no violation of Section 21 of Extradition Act,
1962 either. He submitted that the facts presented by the Indian Government
before Portugal Government include those two offences apart from the offence for
which he was extradited. Further those two offences are "lesser offences" than
the offences for which he was extradited. As such the trial Court was right in
trying him for those two offences along with other offences for which he was
extradited. He relied upon the decision reported in Abu Salem Abdul Qayoom
Ansari vs. State of Maharashtra14 and argued that when the present appellant/A1
made a similar contention against the additional charges framed against him by
the Designated Court, Mumbai, Hon'ble Apex Court turned down his contention and
held that an accused can be indicted not only for the offence for which he has
been extradited but also for the additional offences which provide for lesser
punishment than that of those which are specifically mentioned in the
extradition order. Learned Spl.S.C. further argued that in a subsequent order
(13 supra) Hon'ble Apex Court though allowed the prosecution to withdraw the
additional charges however declared that the ratio in the earlier decision
(14 supra) holds good. In the light of above decisions rendered in his own case,
he argued, the appellant's contention has no substance.
He thus prayed for dismissal of the appeal.
6) In view of the above rival contentions, the points for determination in
this appeal are:
1) Whether the prosecution could establish the guilt of appellant/A1 beyond
reasonable doubt?
2) Whether the trail of appeallant/A1 by the trial Court is without jurisdiction
in view of the alleged termination of extradition order dated 28-03-2003?
3) Whether the trial of appellant/A1 for the offences under Sections 419 and 468
IPC is in violation of Extradition Order dated
28-03-2003 and Section 21 of Extradition Act, 1962?
7) POINT No.1:
a) It should be noted that case against A1 is based on circumstantial
evidence since there is no evidence showing his direct participation in the
crime. Both parties cited decisions rendering guidelines as to how to establish
criminal conspiracy and related offences when the case rests on circumstantial
evidence.
b) In the following decisions cited by the appellant it was held thus:
i) In Navjot Sandhu @ Afsan Guru's case (1 supra) it was held that the gist
of agreement is to out break the law. Agreement is essential. Mere knowledge
or discussion of the plan is not per se enough. It is not necessary that all the
conspirators should participate from the inception to the end of conspiracy.
Some may join conspiracy after the time when such intention was first
entertained by any of them and some other may quit from the conspiracy. All of
them cannot but be treated as conspirators.
ii) In P.K.Narayanan's case (2 supra) it was held that essence of criminal
conspiracy is that an agreement to do an illegal act and such an agreement is
proved either by direct or circumstantial evidence or by both and it is a matter
of common experience that the direct evidence to prove conspiracy is rarely
available. Mere suspicion and surmises or inferences unsupported by cogent
evidence not sufficient.
iii) In Saju's case (4 supra) it was observed that to attract Section 120B it
has to be proved that all the accused had intention and they had agreed to
commit the crime. It is not necessary that each member to a conspiracy must
know all the details of conspiracy. It has to be established that the accused
charged with criminal conspiracy had agreed to pursue a course of conduct which
he knew was leading to the commission of a crime by one or more persons to the
agreement of that offence. Besides the fact of agreement the necessary mens rea
of the crime is also required to be established.
iv) In Baldev Singh's case (5 supra) it was held that mere knowledge or
discussion is not sufficient for an offence under Section 120B IPC.
v) In Tanviben Pankaj Kumar Divetia's case (6 supra) it was held that chain
of circumstances must lead to the only inference of guilt of the accused.
Suspicion should not be allowed to take the place of legal proof.
c) In the following decisions cited by the respondent it was held thus:
i) In Kehar Singh's case (8 supra) it was held that agreement between parties
is essential to constitute criminal conspiracy and physical manifestation of
agreement is necessary. Even in the absence of express agreement, thought
sharing of unlawful design is sufficient.
ii) In Monica Bedi's case (9 supra) it was held that the conviction of A3 for
whose benefit the entire conspiracy was hatched is sustainable.
iii) In Major E.G. Barsay v. State of Bombay's case
(10 supra) it was held that it is not necessary all the parties should agree to
do a single illegal act. It may comprise commission of number of acts.
iv) In State of Maharashtra v. Som Nath Thapa's case
(11 supra) it was held that when the ultimate offence consists of a chain of
actions, it would not be necessary for the prosecution to establish that each of
the conspirators had the knowledge of what the collaborator would do, so long as
it is known that the collaborator would put the goods or service to an unlawful
use.
v) In State of H.P. v. Krishan Lal Pardhan's case (12 supra) it was held that
if pursuant to the criminal conspiracy the conspirators commit several offences,
then all of them will be liable for the offences even if some of them had not
actively participated in the commission of offences.
8) In the light of above guidelines, it has now to be seen whether
prosecution could establish its case beyond reasonable doubt.
a) The facts and evidence would show that the offence was perpetrated in four
stages:
1) Procuring residential and transfer certificate for A1 by providing false
information. (vide evidence of PW6, PW7, PW9, PW10 and PW11 and Exs.P11, P15,
P17, P18)
The aforesaid oral and documentary evidence would clearly show that Ex.P11-
residential certificate and Ex.P17-transfer certificate were obtained in the
assumed name of A1 by providing false information.
The evidence of PW7, MRO, Kurnool will show that on his verification through
Panchayat Secretary it was revealed Ramil Kamil Mallik (assumed name of A1)
whose residential certificate was issued at the address H.No.17/106, R.K.Talkies
Street, Kurnool was not residing in the said house. Similarly the evidence of
PW9 would reveal that transfer certificate bearing No.KU 950556 of Ramil Kamil
Mallik on ZP High School, Pedapadu, Kurnool was not furnished by DEO, Kurnool
and the original of Ex.P17 was not issued by ZP High School, Pedapadu, Kurnool
as the serial number of the certificate was not tallied with the record of DEO
2) Submission of passport applications of A1 with fake certificates to RPO,
Secunderabad. (vide evidence of PWs.1, 2, 3, 4, and 5 and Exs.P1 and P2)
The aforesaid oral and documentary evidence would show that on the request
of A6-an unauthorised passport agent, Kurnool, PW1 filled Ex.P1 and P2 passport
application forms in the assumed name of A1 and affixed his photographs provided
by A6.
PW2, UDC in RPO, Secunderabad deposed that he checked Ex.P1 with reference to
particulars covered by transfer certificate and residential certificate and
affixed rubber stamp and put his initial. PWs.3 to 5 deposed about the
procedure of verification of passport applications and issuance of passports.
Apart from PW1 PW12 also deposed that A6 was a passport agent and he used to get
the passport applications filled up through her by paying amounts. Added to it
PW38 who is the son-in-law of A6 also deposed that his father-in-law informed
him by phone that by mistake he obtained two passports in the name of A1 and A3.
3) Verification of personal particulars/antecedents by Special Branch in SP's
office, Kurnool and despatch to RDO, Secunderabad. (vide evidence of P.Ws.13,
14, 15, 22, 33 and Exs.P19, P20, P21, P21A, P22, P23 and P31)
When the aforesaid oral and documentary evidence is perused, the evidence
of PW22 would show that the passport verification particulars received in SP
Office will be entered in passport entering register and after sorting them
taluq-wise, they will be allotted to concerned Head Constables for verification
of antecedents. The Head Constable will accordingly conduct physical
verification and take signatures of two respectable persons of the locality to
show that they are acquainted with the applicant. The Head Constable will also
enquire in the concerned police station with regard to applicant and then he
will submit his enquiry report. Thereafter, enquiry report along with covering
letter will be sent to RPO, Secunderabad. He stated that Ex.P21 is the enquiry
report given by A5-Abdul Sattar with his signature i.e. Ex.P21A. Ex.P31 is the
covering letter prepared by A4.
Then the evidence of PWs.13, 14, and 15 would show that the duty of
antecedents verification of appellant/A1 was entrusted by A4 to A5 instead of
PW15-P.Subba Raju who is also Head Constable in Special Branch. A5 made false
verification and submitted his report under Ex.P21. The verification report was
despatched to RPO, Secunderabad. Thus, the role of A4 and A5 was delineated in
the above oral and documentary evidence.
4) Receiving passport in speed post and sending it to the destination. (vide
evidence of P.Ws.16, 17, 18 and 20 and Exs.P24, P24A, P25 and P26)
The aforesaid oral and documentary evidence would show that RPO,
Secunderabad has sent passport of A1 in his assumed name under Ex.P24 and 24A
and after receiving the same in head post office, Kurnool A8 delivered the same
to A6 and A6 despatched the same to A9-Noorullah Abdul Khaleeq.
b) Thus, as stated supra, offence was perpetrated in the above four stages. A
close analysis of the concerned oral and documentary evidence would show that
the prosecution could establish that passport was procured in the assumed name
of Ramil Kamil Malik by furnishing false information with the connivance of
different accused in different Government departments and despatched to A9-
Noorullah Abdul Khaleeq. The defence side could not shatter this evidence. Of
course, the main thrust of defence appears to be that A1 has nothing to do with
the entire episode even assuming passport was obtained illegally. Hence, it has
to be seen whether role of A1 could be established or not.
9 a) The role of A1 is concerned, the prosecution strongly argued that
appellant/A1 is not simply a participant at one stage but he is the sole
beneficiary as the passport was procured in his assumed name. On the other
hand, the contention of appellant/A1 is that except showing few photographs on
Exs.P1 and P2 applications containing his faint resemblances, the prosecution
could not establish his nexus with other accused, his participation at any stage
of the crime and more importantly his possessing the so-called passport or using
the same to travel and hence, he cannot be called as beneficiary under the
crime.
b) On a careful analysis of facts and evidence, I am unable to countenance
the argument of appellant/A1. It should be noted that photographs affixed on
Exs.P1 and P2 belong to appellant/A1. PW37 who is a known person and friend of
appellant/A1 identified the photographs on Exs.P1 and P2 as that of
appellant/A1. Of course, it was suggested to him that he never met A1 and that
he was identifying photographs at the instance of CBI, but he denied the same.
His evidence would clearly show that appellant/A1 is a known person to this
witness. So, there can be no doubt that the photographs on Exs.P1 and P2 belong
to him. Even otherwise, the appellant/A1 did not suggest to any of the relevant
witnesses that the photographs do not relate to him. Hence, it is clear that
the photos on Exs.P1 and Ex.P2 belong to him and Exs.P1 and P2 forms submitted
with those photos for his benefit but in his assumed name. Added to it, PW38 who
is the son-in-law of A6 deposed that A6 informed him that he obtained two
passports in the names of two wrong persons (Abu Salem-A1 and Monica Bedi-A3).
This would also show that appellant/A1 is the beneficiary under the crime. In
this regard, argument of appellant/A1 that some one without his knowledge or
connivance might have procured a passport to implicate him in a case cannot be
accepted for the reason that he could not show any of the other accused as his
enemies who have tried to implicate him in the case. So it can be confirmatively
said that appellant/A1 is the beneficiary of the passport. When a person takes
benefit out of a crime, he cannot plead that he is not a part of conspiracy.
Added to above, from the evidence of PWs.2 and 3 the possibility of appellant/A1
submitting Exs.P1 and P2 in the RPO, Secunderabad cannot be ruled out. PW2,
verification clerk in the RPO, Secunderabad deposed that when application for
passport is submitted the applicant has to be present and in the absence of
applicant an authorised person with authorisation letter has to be present. He
deposed that he verified the original of Ex.P1 application in the assumed name
of A1. He admitted that he does not remember whether the applicant shown in
Ex.P1 was present or not while submitting application. In the cross-examination
he stated that there was no authorisation letter with Ex.P1. Then PW3, Public
Relation Officer, RPO, Secunderabad also deposed in similar lines and stated
that generally applicant shall present at the time of presenting application for
passport. Some times applicant absent but somebody will come with authorisation
letter of the applicant. He further stated that at present there is a system of
receiving applications for passport through post but during the relevant period
there was no system of receiving applications for passport through post.
c) So, it is clear from the evidence of PWs.2 and 3 that either appellant/A1
or his authorised agent must have been present for submitting Exs.P1 and P2. We
do not find any endorsement on Exs.P1 and P2 to the effect that application was
submitted by the authorised agent of the applicant. Further, as submitted by PW2
no authorisation letter was enclosed with Exs.P1 and P2. From this an inference
can be drawn that appellant/A1 might have submitted Exs.P1 and P2 in RPO,
Secunderabad. So, from the facts and evidence on record it can be said that
prosecution could establish the guilt of the accused for the offences under
Sections120B, 420, 419 and 471 IPC. This point is answered accordingly.
10) POINT No.2:
1) This point is concerned, it should be noted that apart from the present
case the appellant/A1 was involved in some other cases one of which was in RC-1
(S/93)/CBI/STF, Mumbai (known as Bombay Blast Case No.1 of 1993). In connected
Crl.A.No.415-416 of 2012 arose out of the said case, the present appellant/A1
raised similar jurisdictional issue before the Honourable Apex Court which was
turned down by the Apex Court in its judgment dated 05-08-2013 in Abu Salem
Abdul Qayyum Ansari v. CBI (vide 13 supra). The facts in nutshell are
adumbrated herein for better appreciation of point in issue now.
a) After series of bomb blasts took place on 12-03-1993 in the city of Bombay
causing the death of 257 persons and injuries to some others and loss of
property worth Rs.27 crore crime was registered in
RC-1(S/93)/CBI/STF and investigation was carried out and present appellant/A1
was shown in the charge sheet as absconding accused (A-139) and Red Corner
Notice was issued through Interpol for his arrest.
b) Later on knowing that the appellant/A1 entered in Portugal in the assumed
name of Arsalan Mohsin Ali on a Pakistani passport and was detained therein on
18-09-2002, the Indian Government in December, 2002 submitted a request for his
extradition in 9 criminal cases including the Bombay Blast Case and also in the
present case.
c) Seeking extradition the Deputy Prime Minister of India assured to the
Government of Portugal that if the appellant/A1 is extradited for trial in India
he would neither be conferred with death penalty nor be subjected to
imprisonment for a term beyond 25 years. Accordingly, on 28-03-2003 Ministry of
Justice, Portugal passed an extradition order permitting him to be tried for the
offence under Section 120B r/w 302 IPC; Section 3(2) of TADA. However, the said
order declined his extradition under Section 25(1-A) and 1(B) of Arms Act, 1959;
Sections 4 and 5 of Explosive Substances Act, 1908; Section 5 and 6 of TADA and
Section 9-B of Explosives Act, 1884.
Additionally Ambassador of India in Lisbon gave further assurance on
25-05-2003 that Abu Salem will not be prosecuted for the offence other than
those for which his extradition has been sought and he would not be re-
extradited to any third country.
d) Accordingly, on 11-11-2005 appellant/A1 was brought to India and produced
before the Designated Court, Mumbai in BBC No.1/1993. The said Court framed
charges though some of which were not covered by the extradition order. While
so, prosecution filed MA No.144/2006 seeking separation of trial of
appellant/A1.He also filed MA No.160/2006 seeking production of relevant record
of extradition and sought joint trial with other accused. The Designated Court
allowed the petition of prosecution. It was held that assurances were given
with respect to sentences which could be imposed and not with respect to
offences with which he could be tried.
e) Challenging the above orders appellant/A1 filed Crl.A.No.990 of 2006 and
writ petition before the Supreme Court of India. He contended that extradition
order was violated and he was charged with the offences other than those for
which he was extradited.
f) In addition to above, the appellant/A1 also filed petition before the
Court of Appeal, Lisbon alleging violation of Doctrine of Speciality. The Court
of Appeal expressed its inability to enquire into the matter. So, he went in
appeal to Supreme Court of Justice, Portugal and by order dated 13-07-2007 it
remitted the matter to Court of Appeal to enquire into the alleged violation.
The Court of Appeal adjourned the matter till Supreme Court of India passed
order in Crl.A.No.990 and writ petition filed by him.
g) While so, the Supreme Court of India in its order dated 10-09-2010 (vide
14 supra) held that the appellant/A1 could be tried for the additional charges,
since the punishment for those charges is lesser than the punishment for the
offences for which he was extradited. Accordingly, his appeal and writ petition
were dismissed. Subsequent to the above order, the Court of Appeal, Lisbon in
its judgment dated 14-09-2011 took a contrary view and held that the extradition
order ought to be terminated for violation. Aggrieved, the Union of India
preferred appeal before the Supreme Court of Justice, Portugal but the same was
dismissed. Hence, the Union of India preferred appeal before the Constitutional
Court of Portugal which has held that the termination order be referred to the
political power instances through the central authority, in order for the
Portuguese State to take the attitude it deems to be the most convenient,
through diplomatic channels.
2) The above is the background history relating to the pleas of appellant/A1
touching:
i) termination of the extradition order dated 28-03-2003 and
ii) trial on additional charges not covered by the extradition order.
The matter was not ended there. Against some of the orders of
Designated Court, Mumbai appellant/A1 preferred appeals before the Supreme Court
of India. CBI also filed Criminal Miscellaneous Petitions seeking
clarification/modification of Supreme Court's earlier judgment in Abu Salem
Abdul Qayoom Ansari vs. State of Maharashtra (14 supra). It also sought
permission to withdraw the additional charges against appellant/A1. All these
matters were heard and decided on 05-08-2013 (13 supra). In the said order the
second point for discussion was "Whether the order of extradition dated 28-03-
2003 stands annulled/cancelled as alleged by the appellant/A1?"
On this point the Supreme Court of India held thus:
"The Constitutional Court of Portugal has categorically held that Portuguese law
does not provide for any specific consequence for violation of the Principle of
Speciality and their findings may not be construed as a direction to the Union
of India to return the Appellant to Portugal but shall only serve as a legal
basis for the Government of Portugal, should it choose to seek the return of the
Appellant to Portugal through political, or diplomatic channels, which has not
been done till date according to the statement made by learned Attorney General.
In view of the above discussion, it is vividly clear that the order of
Extradition dated 28-03-2003 still stands valid and effective in the eyes of
law. Accordingly, the second question stands responded."
So, the jurisdictional issue is concerned, the Honourable Supreme Court of
India in the very case of appellant/A1 has made it clear that the extradition
order dated 28-03-2003 still stands valid and effective in the eyes of law for
the reasons mentioned as above. Therefore, the appellant/A1 cannot agitate again
that the extradition order was terminated by the Courts at Portugal and his
trial in India is without jurisdiction. This point is answered accordingly.
11) POINT No.3:
a) This point is concerned admittedly the charges under Sections 419 and 468
IPC are not covered by Extradition Order dated 28-03-2003.
The said order covers only offences under Sections 120B, 420 and 471 IPC for
which the extraditee can be tried. However, the trial Court tried appellant/A1
for those two additional offences and convicted and sentenced as stated supra.
Hence, the point is whether his trial for those offences is in contravention of
Extradition Order and Section 21 of Extradition Act, 1962.
The issue is no more res integra, since the Honourable Apex Court in its
judgment in Abu Salem Abdul Qayoom Ansari vs. State of Maharashtra (vide 14
supra) has given clarification. The background history of said judgment and also
the subsequent judgment of the Supreme Court of India were already narrated by
me in point No.2 supra. Hence, the ratio of the said judgment has to be applied
to the present case. The ratio in the Supreme Court judgment (vide 14 supra) is
to the effect that a fugitive/accused can be indicted not only for the offences
for which he was extradited but also for the additional offences which provided
for lesser punishment than that of those which are specifically mentioned in the
extradition order. What is lesser offence has been explained in para-29 of the
judgment. It says:
"Lesser offence" means an offence which is made out from the proved facts and
provides lesser punishment, as compared to the offences for which the fugitive
has been extradited.
b) When the above ratio is applied to the two offences under Sections 419 and
468 IPC, Section 419 IPC is undoubtedly a lesser offence than extradited offence
in terms of punishment. However, Section 468 IPC is concerned, the punishment
provided for that offence is 7 years and also fine. As such, the said offence is
not a lesser offence than any of the extradited offences in terms of punishment.
Though it is not a greater offence in terms of punishment, it is equivalent to
Section 420 IPC in terms of punishment.
The Trial Court defended the additional charges on the ground that the maximum
punishment for those offences is not more than 7 years and they are not visited
with death sentence. I am afraid, this observation is not correct in the light
of Supreme Court judgment. It must be said that penal provisions require strict
interpretation. Having regard to it, I hold that trial of appellant/A1 for the
offence under Section 468 IPC is not legally valid and so the conviction and
sentence for the said offence liable to be set aside. This point is answered
accordingly.
12) So, in view of discussion on points 1 to 3 supra, it is held that the
appellant/A1 was rightly convicted and sentenced by the trial Court for all but
for the offence under Section 468 IPC.
13) In the result, this Criminal Appeal is partly allowed and while confirming
the conviction and sentence passed by the trial Court against appellant/A1 for
the offences under Sections 120B, 420, 419 and 471 IPC, conviction and sentence
passed by it for the offence under Section 468 IPC is hereby set aside. The
fine amount if deposited under the said count shall be refunded to him.
_________________________
U.DURGA PRASAD RAO, J.
Date: 20-02-2014
1967 - Additional charges than the permitted offences under Extradition proceedings - Accused was brought under Extradition order from Portuguese to India - order permitted only other sections except sec.419 and 468 I.P.C. - Later Portuguese courts terminate the Extradition order due adding of additional charges - But no work was carried out through administrative side - Apex court in another case of Accused Abu Salem in Mumbai held that Extradition order is in force still as no executive orders are passed and further held that lesser offence can be added than the major offence than the Extradition permitted proceedings - Their lordships of High court held that sec.468 is a major offence punishable up to 7 years than the permitted sections in extradition order and as such the punishment under it should be set aside and where as sec.419 is a lesser offence , so it can be added and can be considered as additional charge , no thing can be found wrong in the order of trial court - allowed the appeal partly to the extent of sec.468 of IPC =
Abu Salem against the judgment dated 18-11-2013 in C.C.No.3 of 2006 passed by
III Additional Special Judge for CBI cases, Hyderabad, whereunder the learned
Judge convicted him for the offences under Sections 120B, 419, 120B r/w 420, 468
and 471 IPC but acquitted him of the charge under Section 12(1) of Passport Act,
1967 and sentenced:
(i) to suffer RI for a period of seven years and pay fine of Rs.1,000/- and in
default SI for three months for the charge u/s.120B;
(ii) to suffer RI for a period of one year for the charge u/s.419 IPC;
(iii) to suffer RI for a period of seven years and pay fine of Rs.1,000/- and in
default SI for three months for the charge u/s.120B r/w 420 IPC.
(iv) to suffer RI for a period of one year and pay fine of Rs.1,000/- and in
default SI for three months for the charge u/s.468 IPC;
(v) to suffer RI for a period of one year for the charge u/s.471 IPC
All the substantive sentences were directed to run concurrently. =
So far as A1 is concerned, the case against him was split up
from main case-C.C.No.3/2005 -
One of the Investigating
Officers obtained letter Rogatory from trial Court to Portugal authorities on
26-12-2005. Pursuant to letter Rogatory, he received reply to letter Rogatory
with copies of records from Portugal through Interpol.
Thereafter, the
Investigating Officer filed the charge sheet for the offences under Sections
120B r/w 420, 468, 471 r/w 468 IPC and 12(1) (b) and 12(2) of Passport Act, 1967
and 13(2) r/w 13(1) (d) of Prevention of Corruption Act, 1988. Since, at the
time of filing charge sheet A1 and A3 were detained in Portuguese, Lisbon they
were brought to India on 11-11-2005 under extradition proceedings dated
28-03-2003.=
Secondly, learned counsel argued that in view of the order of Honourable
Supreme Court of Justice, Portugal, the Extradition Order dated
28-03-2003 of the Government of Portuguese since stood terminated, the trial
Court had no jurisdiction to proceed with the trial and hence the conviction and
sentence passed by it are without jurisdiction.
c) Thirdly, learned counsel argued that as per Extradition Proceedings dated
28-03-2003 issued by Ministry of Justice, Portugal, the Sovereign Government of
Portugal while extraditing the appellant/A1 to India has consented for his trial
in the present case for the offences under Sections 120B, 420 and 471 IPC only,
but none else. India being a requesting State shall abide by the Extradition
Order in view of Section 21 of Extradition Act, 1962. However, in gross
infraction of Section 21(c) of the said Act, he was additionally tried,
convicted and sentenced for the offences under Sections 419 and 468 IPC and,
therefore, the entire trial is vitiated. =
Secondly, learned Spl.S.C. argued that the contention of appellant that in
view of the termination order passed by the Supreme Court of Justice, Portugal,
the Extradition Order dated 28.03.2003 was terminated and thereby his trial is
without jurisdiction is farfetched in view of the clarification already given by
Hon'ble Apex Court in the decision reported in Abu Salem Abdul Qayoom Ansari vs.
Central Bureau of Investigation13.
c) Thirdly, learned Spl.S.C. argued that the trial Court has not committed
any error in trying the appellant/A1 for the offences under Sections 419 and 468
IPC though those offences were not specifically mentioned in the Extradition
Order. He argued that there is no violation of Section 21 of Extradition Act,
1962 either. He submitted that the facts presented by the Indian Government
before Portugal Government include those two offences apart from the offence for
which he was extradited. Further those two offences are "lesser offences" than
the offences for which he was extradited. As such the trial Court was right in
trying him for those two offences along with other offences for which he was
extradited. He relied upon the decision reported in Abu Salem Abdul Qayoom
Ansari vs. State of Maharashtra14 and argued that when the present appellant/A1
made a similar contention against the additional charges framed against him by
the Designated Court, Mumbai, Hon'ble Apex Court turned down his contention and
held that an accused can be indicted not only for the offence for which he has
been extradited but also for the additional offences which provide for lesser
punishment than that of those which are specifically mentioned in the
extradition order.
2) Whether the trail of appeallant/A1 by the trial Court is without jurisdiction
in view of the alleged termination of extradition order dated 28-03-2003?
On this point already the Supreme Court of India held thus:
"The Constitutional Court of Portugal has categorically held that Portuguese law
does not provide for any specific consequence for violation of the Principle of
Speciality and their findings may not be construed as a direction to the Union
of India to return the Appellant to Portugal but shall only serve as a legal
basis for the Government of Portugal, should it choose to seek the return of the
Appellant to Portugal through political, or diplomatic channels, which has not
been done till date according to the statement made by learned Attorney General.
In view of the above discussion, it is vividly clear that the order of
Extradition dated 28-03-2003 still stands valid and effective in the eyes of
law. Accordingly, the second question stands responded."
So, the jurisdictional issue is concerned, the Honourable Supreme Court of
India in the very case of appellant/A1 has made it clear that the extradition
order dated 28-03-2003 still stands valid and effective in the eyes of law for
the reasons mentioned as above. Therefore, the appellant/A1 cannot agitate again
that the extradition order was terminated by the Courts at Portugal and his
trial in India is without jurisdiction. This point is answered accordingly.
IPC is in violation of Extradition Order dated
28-03-2003 and Section 21 of Extradition Act, 1962?
The issue is no more res integra, since the Honourable Apex Court in its
judgment in Abu Salem Abdul Qayoom Ansari vs. State of Maharashtra (vide 14
supra) has given clarification. The background history of said judgment and also
the subsequent judgment of the Supreme Court of India were already narrated by
me in point No.2 supra. Hence, the ratio of the said judgment has to be applied
to the present case. The ratio in the Supreme Court judgment (vide 14 supra) is
to the effect that a fugitive/accused can be indicted not only for the offences
for which he was extradited but also for the additional offences which provided
for lesser punishment than that of those which are specifically mentioned in the
extradition order. What is lesser offence has been explained in para-29 of the
judgment. It says:
"Lesser offence" means an offence which is made out from the proved facts and
provides lesser punishment, as compared to the offences for which the fugitive
has been extradited.
b) When the above ratio is applied to the two offences under Sections 419 and
468 IPC, Section 419 IPC is undoubtedly a lesser offence than extradited offence
in terms of punishment. However, Section 468 IPC is concerned, the punishment
provided for that offence is 7 years and also fine. As such, the said offence is
not a lesser offence than any of the extradited offences in terms of punishment.
Though it is not a greater offence in terms of punishment, it is equivalent to
Section 420 IPC in terms of punishment.
The Trial Court defended the additional charges on the ground that the maximum
punishment for those offences is not more than 7 years and they are not visited
with death sentence. I am afraid, this observation is not correct in the light
of Supreme Court judgment. It must be said that penal provisions require strict
interpretation. Having regard to it, I hold that trial of appellant/A1 for the
offence under Section 468 IPC is not legally valid and so the conviction and
sentence for the said offence liable to be set aside. This point is answered
accordingly.
12) So, in view of discussion on points 1 to 3 supra, it is held that the
appellant/A1 was rightly convicted and sentenced by the trial Court for all but
for the offence under Section 468 IPC.
In the result, this Criminal Appeal is partly allowed and while confirming
the conviction and sentence passed by the trial Court against appellant/A1 for
the offences under Sections 120B, 420, 419 and 471 IPC, conviction and sentence
passed by it for the offence under Section 468 IPC is hereby set aside.
2014 (Feb.Part ) judis.nic.in/judis_andhra/filename=10928
THE HON'BLE SRI JUSTICE U.DURGA PRASAD RAO
CRIMINAL APPEAL No.1062 of 2013
20-02-2014
Abu Salem Abdul Qayoom Ansari @ Abdul Salem..... Appellant/Accused No.1
State of Andhra Pradesh Rep. by its Special P.P. for CBI,High Court of A.P,
Hyderabad .... Respondent
Counsel for Appellant: Sri Pradeep Kumar. S and
Sri S. Pasbola.
Counsel for Respondent: Sri P. Kesava Rao,
Special Standing Counsel for CBI
<Gist:
>Head Note:
?Cases referred:
1) 2005 SCC (Crl) 1715
2) 1995 SCC (Crl) 215
3) 1999 SCC (Crl) 127
4) 2001 SCC (Crl) 160
5) (2009) 3 SCC (Crl) 66
6) 1997 SCC (Cri) 1004
7) (2001) 4 SCC 516
8) (1988) 3 SCC 609
9) (2011) 1 SCC 284
10) AIR 1961 SC 1762
11) (1996) 4 SCC 659
12) (1987) 2 SCC 17 = AIR 1987 SC 773
13) 2013 (3) ALT (Cri) 385
14) (2011) 11 SC 214 =(2011) 3 SCC (Cri) 125
THE HONOURABLE SRI JUSTICE U.DURGA PRASAD RAO
CRIMINAL APPEAL No.1062 of 2013
Judgment:
This Criminal Appeal is preferred by accused No.1-Abu Salem Qayoom Ansari
@ Abu Salem against the judgment dated 18-11-2013 in C.C.No.3 of 2006 passed by
III Additional Special Judge for CBI cases, Hyderabad, whereunder the learned
Judge convicted him for the offences under Sections 120B, 419, 120B r/w 420, 468
and 471 IPC but acquitted him of the charge under Section 12(1) of Passport Act,
1967 and sentenced:
(i) to suffer RI for a period of seven years and pay fine of Rs.1,000/- and in
default SI for three months for the charge u/s.120B;
(ii) to suffer RI for a period of one year for the charge u/s.419 IPC;
(iii) to suffer RI for a period of seven years and pay fine of Rs.1,000/- and in
default SI for three months for the charge u/s.120B r/w 420 IPC.
(iv) to suffer RI for a period of one year and pay fine of Rs.1,000/- and in
default SI for three months for the charge u/s.468 IPC;
(v) to suffer RI for a period of one year for the charge u/s.471 IPC
All the substantive sentences were directed to run concurrently.
2) The facts which led to file this appeal can be stated thus:
The Inspector of CBI/SPE, Hyderabad laid charge sheet in RC.No.34(A)/2002,
CBI, Hyderabad against altogether 10 accused before the trial Court in which Abu
Salem Qayoom Ansari @ Abu Salem (A1); Sameera Jumari @ Neha Asif Jafari (A2);
Monica Bedi @ Sana Malik Kamal (A3); Chamundi Abdul Hameed (A6); Faizan Hameed
Sultan (A10) were shown as absconders. The charge sheet was taken on file in
C.C.No.3/2005 and NBWs. were issued against A1, A2, A6 and A10.
Later it appears that A3, A5, A7 and A8 were tried by the learned Special Judge
for CBI cases, Hyderabad and sentenced which was upheld by the High Court and
the Supreme Court. So far as A1 is concerned, the case against him was split up
from main case-C.C.No.3/2005 and numbered as CC.No.3/2006 and tried with which
we are concerned now.
3) The prosecution case is thus:
a) A1 to A3 with the assumed names as stated supra, obtained passports from
Regional Passport Office (RPO), Secunderabad during the year 2001 by furnishing
false documents with the connivance of A4-G.Srinivas, passport clerk, (D2
Section) in the office of Superintendent of Police, Kurnool District, Kurnool;
A5-Shaik Abdul Sattar, Head Constable, Special Branch, Kurnool; A6-Abdul Hameed,
unauthorised passport agent of Kurnool. On source information, the Inspector,
CBI, Hyderabad registered a case and issued FIR on 20-09-2002. On the same
facts another case was registered in I Town Police Station, Kurnool on 21-09-
2002 in Cr.No.103/2002 against A4 to A7 for the offences under Sections 417,
420, 120B IPC and Section 12 of Passport Act, 1967 and later on 23-10-2002 the
case was transferred to CBI, Hyderabad.
b) More vividly, A10-Faizan Hameed Sultan owner of M/s.Faizan Enterprises,
Mumbai was involved in recruiting people for jobs abroad.
He gave 10 passport sized photographs of A1 to A3 and their fake names and
documents to A9-Noorullah Abdul Khaleeq and asked him to obtain three passports
for A1 to A3 from Kurnool. A9 has relatives in Kurnool.
He visited Kurnool in March, 2001 and entrusted the work of securing passports
for A1 to A3 to one A6-Ch.Abdul Hameed, an unauthorised passport agent.
c) The further case of the prosecution is that at the instance of A6, A7-
Mohammed Younus,
Mandal Revenue Inspector of MRO Office, Kurnool issued false
residential certificates in the assumed names of A1 to A3
(vide Ex.P11-certified copy of residential certificate of A1).
Further, A6
procured fake transfer certificate purported to have been issued by the Head
Master, ZPP High School, Pedapadu, Kurnool District in the name of A1 (vide
Ex.P17-certified copy of transfer certificate of A1), and
two fake marks sheets
in the names of A2 and A3 purported to have been issued by the Head Master,
Hanuman Higher Elementary School as a proof of their dates of birth.
Later, it
was revealed that transfer certificate was not issued by ZPP High School to A1
and Hanuman Higher Elementary School was not in existence. (vide Ex.P16).
d) It is the further case of the prosecution that after procuring above
documents, A6 got filled passport applications of A1 to A3 through PW1-Abdul
Gaffar, a clerk in Taj Mahal Beedi Company, Kurnool (vide Ex.P1 and P2-certified
copies of passport application and passport registration form of A1). Later they
were filed in RPO, Secunderabad wherefrom personal particulars forms were sent
to the Office of SP, Kurnool for verification of antecedents of the applicants
and the same were received in the Office of SP, Kurnool on 31-05-2001 and 08-06-
2001. A4-G.Srinivas who was dealing Assistant in the Special Branch (known as
D2) handed over the personal particulars of A1, A2 and A3 to A5-S.A.Sattar, who
is a writer/Head Constable in Special Branch instead of to concerned area Head
Constable i.e. PW15-P.Subba Raju for field verification of antecedents.
A5 submitted fake field verification report (vide Ex.P21 and 21A relating to A1)
along with the statement of six fictitious persons as alleged neighbours in
respect of character and conduct of A1 to A3. On receipt of these reports, A4
despatched them to RPO, Secunderabad under the covering letter of SP dated 28-
06-2001 (vide Ex.P19).
e) The further case of the prosecution is that on the strength of these
reports, RPO issued passport No.B5804689 dated 08-08-2001 to A1 in the name of
Ramil Kamil Mallik and two more passports in the assumed names of A2 and A3 and
the same were despatched by speed post to their respective addresses indicated
in the passport applications on 24-08-2001 (vide Ex.P24 and P24A-speed post
booking journal and relevant entry dated 24-08-2001 relating to A1).
f) The passports were received at the head post office through speed post.
Passports of A2 and A3 are concerned, on 23-08-2001 two speed posts containing
passports addressed to the assumed names of A2 and A3 were entrusted to PW18-
Babu Miyan, Postman of beat No.2 for delivery. However, A8-Gokari Sahib,
Postman, Head Post Office, Kurnool approached him and collected those two speed
post articles along with third one by giving his acknowledgements on the
delivery list falsely representing that he knew the addressees and he would
personally deliver the articles while going home.
g) While so, on 27-08-2001 another speed post article containing passport in
the assumed name of A1 was entrusted to A8 for delivery and in turn he delivered
it to one Aslam Khan, Cashier Hotel Elite, Kurnool where A6 was working. A6-
Hameed sent two covers to A9-Noorullah on 23-08-2001 and 27-08-2001 through courier service (vide Ex.P28 Sl.No.254- daily sales register of Professional Couriers).
That is how the crime was perpetrated.
h) The further case of the prosecution is that the Investigating Officer of
the day examined the witnesses at various places, collected documents, obtained
sanction orders for prosecution of accused public servants, A4, A5, A7 and A8
for prosecution under the Prevention of Corruption Act, 1988 from the concerned
authorities. He obtained sample signatures and handwritings of A4, A5, A7 and A8
in the presence of mediators and sent the standard and suspected signatures to
the Government Examiner of Questioned Documents (GEQD) for comparison and
report. He received the handwriting expert opinion. One of the Investigating
Officers obtained letter Rogatory from trial Court to Portugal authorities on
26-12-2005. Pursuant to letter Rogatory, he received reply to letter Rogatory
with copies of records from Portugal through Interpol. Thereafter, the
Investigating Officer filed the charge sheet for the offences under Sections
120B r/w 420, 468, 471 r/w 468 IPC and 12(1) (b) and 12(2) of Passport Act, 1967
and 13(2) r/w 13(1) (d) of Prevention of Corruption Act, 1988. Since, at the
time of filing charge sheet A1 and A3 were detained in Portuguese, Lisbon they
were brought to India on 11-11-2005 under extradition proceedings dated
28-03-2003.
i) The case against A1 was split up from the main case in C.C.No.3/2005 and
on his appearance the trial Court framed charges under Sections 120B, 120B r/w
420, 468, 471 and 419 IPC and under Section 12(1) of Passport Act, 1967 and
trial was conducted.
j) During trial PWs.1 to 39 were examined and Exs.P1 to P51 were marked on
behalf of the prosecution.
k) A perusal of the judgment would show that trial Court considering the
evidence placed on record came to the conclusion that A1 applied for passport
with fake identities and fake address with his real photos and with the
conspiracy of revenue, police and postal employees could secure the passport.
In this regard, trial Court rejected the argument of A1 that the prosecution
could not prove by cogent evidence that A1 had submitted passport application
and obtained passport with the conspiracy of other accused. The trial Court held
that A1 is concerned, he was the ultimate beneficiary in obtaining passport with
false identify, false address, false educational and residence certificate which
resulted in issuing passport and the other accused entered into criminal
conspiracy and played their roles. Thus, the trial Court held that prosecution
could able to prove the guilt of A1 for the offence under Section 120B, 419,
120B r/w 420, 468 and 471 IPC. However, the trial Court acquitted A1 for the
charge under Section 12 of Passport Act, 1967.
Hence, the appeal.
3) Heard arguments of Sri S. Pasbola and Mr.S.Pradeep Kumar, learned counsel
for appellant and Sri P.Kesava Rao, learned Special Standing Counsel for CBI
(Spl.S.C.)
4) Vehemently fulminating the judgment of trial Court, learned counsel for
appellant submitted the following points.
a) Firstly, he argued that prosecution utterly failed to establish the
criminal nexus between A1 and other accused. It failed to establish the criminal
conspiracy among the accused in procuring passport for A1 with false
particulars.
Expatiating it, learned counsel would argue that no evidence is placed on record
to show that appellant/A1 knew the other accused and they worked for him under
his instructions and he met or contacted them to file an application for
obtaining passport and instructed them to procure residential certificate and
transfer certificate with bogus particulars. Learned counsel submitted that
prosecution failed to establish that appellant/A1 signed on Exs.P1 and P2
passport applications, he either personally or through his authorised agent
submitted those applications in RPO, Secunderabad, he personally applied for
residential certificate and transfer certificate with false information and most
importantly he received the passport from A9 or A10 after it was despatched by
A6. The prosecution equally failed to establish either he was in possession of
the passport or travelled abroad using the same. The passport which he allegedly
procured by dubious methods was never found in his possession which was evident
from the answers furnished to the Investigating Officer by the Portugal
authorities in the letter Rogatory and the prosecution failed to produce the
said passport in the Court. Thus, except for few photos with his faint
resemblances found on Ex.P1 and P2 passport applications, which is a weak piece
of evidence, absolutely there is no other evidence to connect appellant/A1 with
the case. In this regard learned counsel argued that no parallel can drawn
between the case of appellant/A1 and the case of A3-Monica Bedi, since the facts
in that case are different inasmuch as she was caught travelling with the
passport which she obtained by dubious methods.
He argued that when the prosecution rests on circumstantial evidence to
prove the criminal conspiracy among A1 and other accused, it must be able to
prove all the suspicious circumstances like a chain and that must unerringly
establish the guilt of accused giving no scope for his innocence. He submitted
in this case vital missing link is the connection between A1 and other accused.
He relied upon the following decisions on the guidelines for proof of criminal
conspiracy.
1. State (NCT of Delhi) v. Navjot Sandhu @ Afsan Guru1
2. P.K.Narayanan v. State of Kerala2
3. Sanjiv Kumar v. State of H.P.3
4. Saju v. State of Kerala4
5. Baldev Singh v. State of Punjab5
6. Tanviben Pankajkumar Divetia v. State of Gujarat6
b) Secondly, learned counsel argued that in view of the order of Honourable
Supreme Court of Justice, Portugal, the Extradition Order dated
28-03-2003 of the Government of Portuguese since stood terminated, the trial
Court had no jurisdiction to proceed with the trial and hence the conviction and
sentence passed by it are without jurisdiction.
c) Thirdly, learned counsel argued that as per Extradition Proceedings dated
28-03-2003 issued by Ministry of Justice, Portugal, the Sovereign Government of
Portugal while extraditing the appellant/A1 to India has consented for his trial
in the present case for the offences under Sections 120B, 420 and 471 IPC only,
but none else. India being a requesting State shall abide by the Extradition
Order in view of Section 21 of Extradition Act, 1962. However, in gross
infraction of Section 21(c) of the said Act, he was additionally tried,
convicted and sentenced for the offences under Sections 419 and 468 IPC and,
therefore, the entire trial is vitiated.
He relied upon the following decision
on the principle that a fugitive tried on extradition decree cannot be tried in
respect of an offence which does not form part of decree.
Daya Singh Lahoria v. Union of India7
He thus prayed to allow the appeal.
5 a) Per contra, supporting the judgment of the trial Court learned Spl.S.C.
firstly argued that the prosecution by overwhelming evidence established the
conspiracy of different accused in procuring the passport for A1 in his assumed
name. The appellant/A1 could not shatter the evidence on record in his cross-
examination to establish that passport was not procured by dubious methods. His
only contention was that he has nothing to do with the alleged conspiracy among
different accused in procuring passport and he was not all the holder of the
said passport. Conspiracy being hatched in secrecy, it can only be established
by circumstantial evidence and in this case the prosecution could establish two
main circumstances: 1) that a passport was obtained by illegal means and 2) that
the said passport was obtained for the benefit of appellant/A1. That being so,
learned standing counsel would argue, being the beneficiary of criminal act, the
appellant/A1 cannot plead ignorance by contending that he is absolutely nothing
to do with the conspiracy among other accused. He could not even remotely
suggest or establish that the other accused or some one else hatched a plan to
implicate him in a case and that was why they took all the pains to procure the
passport in his assumed name. He submitted that when the appellant/A1 failed to
show such preponderance of probability, he can be presumed as part of the
conspiracy and he can be held liable for the acts of co-conspirators because he
is the sole beneficiary of illegal fruit. He relied upon the following decisions
on the appreciation of circumstantial evidence on criminal conspiracy:
1. Kehar Singh v. State (Delhi Admn.)8
2. Monica Bedi v. State of A.P.9
3. State (NCT of Delhi) v. Navjot Sandhu @ Afsan guru( 1 supra)
4. Major E.G. Barsay v. State of Bombay10
5. State of Maharashtra v. Som Nath Thapa11
6. State of H.P. v. Krishan Lal Pardhan12
b) Secondly, learned Spl.S.C. argued that the contention of appellant that in
view of the termination order passed by the Supreme Court of Justice, Portugal,
the Extradition Order dated 28.03.2003 was terminated and thereby his trial is
without jurisdiction is farfetched in view of the clarification already given by
Hon'ble Apex Court in the decision reported in Abu Salem Abdul Qayoom Ansari vs.
Central Bureau of Investigation13.
c) Thirdly, learned Spl.S.C. argued that the trial Court has not committed
any error in trying the appellant/A1 for the offences under Sections 419 and 468
IPC though those offences were not specifically mentioned in the Extradition
Order. He argued that there is no violation of Section 21 of Extradition Act,
1962 either. He submitted that the facts presented by the Indian Government
before Portugal Government include those two offences apart from the offence for
which he was extradited. Further those two offences are "lesser offences" than
the offences for which he was extradited. As such the trial Court was right in
trying him for those two offences along with other offences for which he was
extradited. He relied upon the decision reported in Abu Salem Abdul Qayoom
Ansari vs. State of Maharashtra14 and argued that when the present appellant/A1
made a similar contention against the additional charges framed against him by
the Designated Court, Mumbai, Hon'ble Apex Court turned down his contention and
held that an accused can be indicted not only for the offence for which he has
been extradited but also for the additional offences which provide for lesser
punishment than that of those which are specifically mentioned in the
extradition order. Learned Spl.S.C. further argued that in a subsequent order
(13 supra) Hon'ble Apex Court though allowed the prosecution to withdraw the
additional charges however declared that the ratio in the earlier decision
(14 supra) holds good. In the light of above decisions rendered in his own case,
he argued, the appellant's contention has no substance.
He thus prayed for dismissal of the appeal.
6) In view of the above rival contentions, the points for determination in
this appeal are:
1) Whether the prosecution could establish the guilt of appellant/A1 beyond
reasonable doubt?
2) Whether the trail of appeallant/A1 by the trial Court is without jurisdiction
in view of the alleged termination of extradition order dated 28-03-2003?
3) Whether the trial of appellant/A1 for the offences under Sections 419 and 468
IPC is in violation of Extradition Order dated
28-03-2003 and Section 21 of Extradition Act, 1962?
7) POINT No.1:
a) It should be noted that case against A1 is based on circumstantial
evidence since there is no evidence showing his direct participation in the
crime. Both parties cited decisions rendering guidelines as to how to establish
criminal conspiracy and related offences when the case rests on circumstantial
evidence.
b) In the following decisions cited by the appellant it was held thus:
i) In Navjot Sandhu @ Afsan Guru's case (1 supra) it was held that the gist
of agreement is to out break the law. Agreement is essential. Mere knowledge
or discussion of the plan is not per se enough. It is not necessary that all the
conspirators should participate from the inception to the end of conspiracy.
Some may join conspiracy after the time when such intention was first
entertained by any of them and some other may quit from the conspiracy. All of
them cannot but be treated as conspirators.
ii) In P.K.Narayanan's case (2 supra) it was held that essence of criminal
conspiracy is that an agreement to do an illegal act and such an agreement is
proved either by direct or circumstantial evidence or by both and it is a matter
of common experience that the direct evidence to prove conspiracy is rarely
available. Mere suspicion and surmises or inferences unsupported by cogent
evidence not sufficient.
iii) In Saju's case (4 supra) it was observed that to attract Section 120B it
has to be proved that all the accused had intention and they had agreed to
commit the crime. It is not necessary that each member to a conspiracy must
know all the details of conspiracy. It has to be established that the accused
charged with criminal conspiracy had agreed to pursue a course of conduct which
he knew was leading to the commission of a crime by one or more persons to the
agreement of that offence. Besides the fact of agreement the necessary mens rea
of the crime is also required to be established.
iv) In Baldev Singh's case (5 supra) it was held that mere knowledge or
discussion is not sufficient for an offence under Section 120B IPC.
v) In Tanviben Pankaj Kumar Divetia's case (6 supra) it was held that chain
of circumstances must lead to the only inference of guilt of the accused.
Suspicion should not be allowed to take the place of legal proof.
c) In the following decisions cited by the respondent it was held thus:
i) In Kehar Singh's case (8 supra) it was held that agreement between parties
is essential to constitute criminal conspiracy and physical manifestation of
agreement is necessary. Even in the absence of express agreement, thought
sharing of unlawful design is sufficient.
ii) In Monica Bedi's case (9 supra) it was held that the conviction of A3 for
whose benefit the entire conspiracy was hatched is sustainable.
iii) In Major E.G. Barsay v. State of Bombay's case
(10 supra) it was held that it is not necessary all the parties should agree to
do a single illegal act. It may comprise commission of number of acts.
iv) In State of Maharashtra v. Som Nath Thapa's case
(11 supra) it was held that when the ultimate offence consists of a chain of
actions, it would not be necessary for the prosecution to establish that each of
the conspirators had the knowledge of what the collaborator would do, so long as
it is known that the collaborator would put the goods or service to an unlawful
use.
v) In State of H.P. v. Krishan Lal Pardhan's case (12 supra) it was held that
if pursuant to the criminal conspiracy the conspirators commit several offences,
then all of them will be liable for the offences even if some of them had not
actively participated in the commission of offences.
8) In the light of above guidelines, it has now to be seen whether
prosecution could establish its case beyond reasonable doubt.
a) The facts and evidence would show that the offence was perpetrated in four
stages:
1) Procuring residential and transfer certificate for A1 by providing false
information. (vide evidence of PW6, PW7, PW9, PW10 and PW11 and Exs.P11, P15,
P17, P18)
The aforesaid oral and documentary evidence would clearly show that Ex.P11-
residential certificate and Ex.P17-transfer certificate were obtained in the
assumed name of A1 by providing false information.
The evidence of PW7, MRO, Kurnool will show that on his verification through
Panchayat Secretary it was revealed Ramil Kamil Mallik (assumed name of A1)
whose residential certificate was issued at the address H.No.17/106, R.K.Talkies
Street, Kurnool was not residing in the said house. Similarly the evidence of
PW9 would reveal that transfer certificate bearing No.KU 950556 of Ramil Kamil
Mallik on ZP High School, Pedapadu, Kurnool was not furnished by DEO, Kurnool
and the original of Ex.P17 was not issued by ZP High School, Pedapadu, Kurnool
as the serial number of the certificate was not tallied with the record of DEO
2) Submission of passport applications of A1 with fake certificates to RPO,
Secunderabad. (vide evidence of PWs.1, 2, 3, 4, and 5 and Exs.P1 and P2)
The aforesaid oral and documentary evidence would show that on the request
of A6-an unauthorised passport agent, Kurnool, PW1 filled Ex.P1 and P2 passport
application forms in the assumed name of A1 and affixed his photographs provided
by A6.
PW2, UDC in RPO, Secunderabad deposed that he checked Ex.P1 with reference to
particulars covered by transfer certificate and residential certificate and
affixed rubber stamp and put his initial. PWs.3 to 5 deposed about the
procedure of verification of passport applications and issuance of passports.
Apart from PW1 PW12 also deposed that A6 was a passport agent and he used to get
the passport applications filled up through her by paying amounts. Added to it
PW38 who is the son-in-law of A6 also deposed that his father-in-law informed
him by phone that by mistake he obtained two passports in the name of A1 and A3.
3) Verification of personal particulars/antecedents by Special Branch in SP's
office, Kurnool and despatch to RDO, Secunderabad. (vide evidence of P.Ws.13,
14, 15, 22, 33 and Exs.P19, P20, P21, P21A, P22, P23 and P31)
When the aforesaid oral and documentary evidence is perused, the evidence
of PW22 would show that the passport verification particulars received in SP
Office will be entered in passport entering register and after sorting them
taluq-wise, they will be allotted to concerned Head Constables for verification
of antecedents. The Head Constable will accordingly conduct physical
verification and take signatures of two respectable persons of the locality to
show that they are acquainted with the applicant. The Head Constable will also
enquire in the concerned police station with regard to applicant and then he
will submit his enquiry report. Thereafter, enquiry report along with covering
letter will be sent to RPO, Secunderabad. He stated that Ex.P21 is the enquiry
report given by A5-Abdul Sattar with his signature i.e. Ex.P21A. Ex.P31 is the
covering letter prepared by A4.
Then the evidence of PWs.13, 14, and 15 would show that the duty of
antecedents verification of appellant/A1 was entrusted by A4 to A5 instead of
PW15-P.Subba Raju who is also Head Constable in Special Branch. A5 made false
verification and submitted his report under Ex.P21. The verification report was
despatched to RPO, Secunderabad. Thus, the role of A4 and A5 was delineated in
the above oral and documentary evidence.
4) Receiving passport in speed post and sending it to the destination. (vide
evidence of P.Ws.16, 17, 18 and 20 and Exs.P24, P24A, P25 and P26)
The aforesaid oral and documentary evidence would show that RPO,
Secunderabad has sent passport of A1 in his assumed name under Ex.P24 and 24A
and after receiving the same in head post office, Kurnool A8 delivered the same
to A6 and A6 despatched the same to A9-Noorullah Abdul Khaleeq.
b) Thus, as stated supra, offence was perpetrated in the above four stages. A
close analysis of the concerned oral and documentary evidence would show that
the prosecution could establish that passport was procured in the assumed name
of Ramil Kamil Malik by furnishing false information with the connivance of
different accused in different Government departments and despatched to A9-
Noorullah Abdul Khaleeq. The defence side could not shatter this evidence. Of
course, the main thrust of defence appears to be that A1 has nothing to do with
the entire episode even assuming passport was obtained illegally. Hence, it has
to be seen whether role of A1 could be established or not.
9 a) The role of A1 is concerned, the prosecution strongly argued that
appellant/A1 is not simply a participant at one stage but he is the sole
beneficiary as the passport was procured in his assumed name. On the other
hand, the contention of appellant/A1 is that except showing few photographs on
Exs.P1 and P2 applications containing his faint resemblances, the prosecution
could not establish his nexus with other accused, his participation at any stage
of the crime and more importantly his possessing the so-called passport or using
the same to travel and hence, he cannot be called as beneficiary under the
crime.
b) On a careful analysis of facts and evidence, I am unable to countenance
the argument of appellant/A1. It should be noted that photographs affixed on
Exs.P1 and P2 belong to appellant/A1. PW37 who is a known person and friend of
appellant/A1 identified the photographs on Exs.P1 and P2 as that of
appellant/A1. Of course, it was suggested to him that he never met A1 and that
he was identifying photographs at the instance of CBI, but he denied the same.
His evidence would clearly show that appellant/A1 is a known person to this
witness. So, there can be no doubt that the photographs on Exs.P1 and P2 belong
to him. Even otherwise, the appellant/A1 did not suggest to any of the relevant
witnesses that the photographs do not relate to him. Hence, it is clear that
the photos on Exs.P1 and Ex.P2 belong to him and Exs.P1 and P2 forms submitted
with those photos for his benefit but in his assumed name. Added to it, PW38 who
is the son-in-law of A6 deposed that A6 informed him that he obtained two
passports in the names of two wrong persons (Abu Salem-A1 and Monica Bedi-A3).
This would also show that appellant/A1 is the beneficiary under the crime. In
this regard, argument of appellant/A1 that some one without his knowledge or
connivance might have procured a passport to implicate him in a case cannot be
accepted for the reason that he could not show any of the other accused as his
enemies who have tried to implicate him in the case. So it can be confirmatively
said that appellant/A1 is the beneficiary of the passport. When a person takes
benefit out of a crime, he cannot plead that he is not a part of conspiracy.
Added to above, from the evidence of PWs.2 and 3 the possibility of appellant/A1
submitting Exs.P1 and P2 in the RPO, Secunderabad cannot be ruled out. PW2,
verification clerk in the RPO, Secunderabad deposed that when application for
passport is submitted the applicant has to be present and in the absence of
applicant an authorised person with authorisation letter has to be present. He
deposed that he verified the original of Ex.P1 application in the assumed name
of A1. He admitted that he does not remember whether the applicant shown in
Ex.P1 was present or not while submitting application. In the cross-examination
he stated that there was no authorisation letter with Ex.P1. Then PW3, Public
Relation Officer, RPO, Secunderabad also deposed in similar lines and stated
that generally applicant shall present at the time of presenting application for
passport. Some times applicant absent but somebody will come with authorisation
letter of the applicant. He further stated that at present there is a system of
receiving applications for passport through post but during the relevant period
there was no system of receiving applications for passport through post.
c) So, it is clear from the evidence of PWs.2 and 3 that either appellant/A1
or his authorised agent must have been present for submitting Exs.P1 and P2. We
do not find any endorsement on Exs.P1 and P2 to the effect that application was
submitted by the authorised agent of the applicant. Further, as submitted by PW2
no authorisation letter was enclosed with Exs.P1 and P2. From this an inference
can be drawn that appellant/A1 might have submitted Exs.P1 and P2 in RPO,
Secunderabad. So, from the facts and evidence on record it can be said that
prosecution could establish the guilt of the accused for the offences under
Sections120B, 420, 419 and 471 IPC. This point is answered accordingly.
10) POINT No.2:
1) This point is concerned, it should be noted that apart from the present
case the appellant/A1 was involved in some other cases one of which was in RC-1
(S/93)/CBI/STF, Mumbai (known as Bombay Blast Case No.1 of 1993). In connected
Crl.A.No.415-416 of 2012 arose out of the said case, the present appellant/A1
raised similar jurisdictional issue before the Honourable Apex Court which was
turned down by the Apex Court in its judgment dated 05-08-2013 in Abu Salem
Abdul Qayyum Ansari v. CBI (vide 13 supra). The facts in nutshell are
adumbrated herein for better appreciation of point in issue now.
a) After series of bomb blasts took place on 12-03-1993 in the city of Bombay
causing the death of 257 persons and injuries to some others and loss of
property worth Rs.27 crore crime was registered in
RC-1(S/93)/CBI/STF and investigation was carried out and present appellant/A1
was shown in the charge sheet as absconding accused (A-139) and Red Corner
Notice was issued through Interpol for his arrest.
b) Later on knowing that the appellant/A1 entered in Portugal in the assumed
name of Arsalan Mohsin Ali on a Pakistani passport and was detained therein on
18-09-2002, the Indian Government in December, 2002 submitted a request for his
extradition in 9 criminal cases including the Bombay Blast Case and also in the
present case.
c) Seeking extradition the Deputy Prime Minister of India assured to the
Government of Portugal that if the appellant/A1 is extradited for trial in India
he would neither be conferred with death penalty nor be subjected to
imprisonment for a term beyond 25 years. Accordingly, on 28-03-2003 Ministry of
Justice, Portugal passed an extradition order permitting him to be tried for the
offence under Section 120B r/w 302 IPC; Section 3(2) of TADA. However, the said
order declined his extradition under Section 25(1-A) and 1(B) of Arms Act, 1959;
Sections 4 and 5 of Explosive Substances Act, 1908; Section 5 and 6 of TADA and
Section 9-B of Explosives Act, 1884.
Additionally Ambassador of India in Lisbon gave further assurance on
25-05-2003 that Abu Salem will not be prosecuted for the offence other than
those for which his extradition has been sought and he would not be re-
extradited to any third country.
d) Accordingly, on 11-11-2005 appellant/A1 was brought to India and produced
before the Designated Court, Mumbai in BBC No.1/1993. The said Court framed
charges though some of which were not covered by the extradition order. While
so, prosecution filed MA No.144/2006 seeking separation of trial of
appellant/A1.He also filed MA No.160/2006 seeking production of relevant record
of extradition and sought joint trial with other accused. The Designated Court
allowed the petition of prosecution. It was held that assurances were given
with respect to sentences which could be imposed and not with respect to
offences with which he could be tried.
e) Challenging the above orders appellant/A1 filed Crl.A.No.990 of 2006 and
writ petition before the Supreme Court of India. He contended that extradition
order was violated and he was charged with the offences other than those for
which he was extradited.
f) In addition to above, the appellant/A1 also filed petition before the
Court of Appeal, Lisbon alleging violation of Doctrine of Speciality. The Court
of Appeal expressed its inability to enquire into the matter. So, he went in
appeal to Supreme Court of Justice, Portugal and by order dated 13-07-2007 it
remitted the matter to Court of Appeal to enquire into the alleged violation.
The Court of Appeal adjourned the matter till Supreme Court of India passed
order in Crl.A.No.990 and writ petition filed by him.
g) While so, the Supreme Court of India in its order dated 10-09-2010 (vide
14 supra) held that the appellant/A1 could be tried for the additional charges,
since the punishment for those charges is lesser than the punishment for the
offences for which he was extradited. Accordingly, his appeal and writ petition
were dismissed. Subsequent to the above order, the Court of Appeal, Lisbon in
its judgment dated 14-09-2011 took a contrary view and held that the extradition
order ought to be terminated for violation. Aggrieved, the Union of India
preferred appeal before the Supreme Court of Justice, Portugal but the same was
dismissed. Hence, the Union of India preferred appeal before the Constitutional
Court of Portugal which has held that the termination order be referred to the
political power instances through the central authority, in order for the
Portuguese State to take the attitude it deems to be the most convenient,
through diplomatic channels.
2) The above is the background history relating to the pleas of appellant/A1
touching:
i) termination of the extradition order dated 28-03-2003 and
ii) trial on additional charges not covered by the extradition order.
The matter was not ended there. Against some of the orders of
Designated Court, Mumbai appellant/A1 preferred appeals before the Supreme Court
of India. CBI also filed Criminal Miscellaneous Petitions seeking
clarification/modification of Supreme Court's earlier judgment in Abu Salem
Abdul Qayoom Ansari vs. State of Maharashtra (14 supra). It also sought
permission to withdraw the additional charges against appellant/A1. All these
matters were heard and decided on 05-08-2013 (13 supra). In the said order the
second point for discussion was "Whether the order of extradition dated 28-03-
2003 stands annulled/cancelled as alleged by the appellant/A1?"
On this point the Supreme Court of India held thus:
"The Constitutional Court of Portugal has categorically held that Portuguese law
does not provide for any specific consequence for violation of the Principle of
Speciality and their findings may not be construed as a direction to the Union
of India to return the Appellant to Portugal but shall only serve as a legal
basis for the Government of Portugal, should it choose to seek the return of the
Appellant to Portugal through political, or diplomatic channels, which has not
been done till date according to the statement made by learned Attorney General.
In view of the above discussion, it is vividly clear that the order of
Extradition dated 28-03-2003 still stands valid and effective in the eyes of
law. Accordingly, the second question stands responded."
So, the jurisdictional issue is concerned, the Honourable Supreme Court of
India in the very case of appellant/A1 has made it clear that the extradition
order dated 28-03-2003 still stands valid and effective in the eyes of law for
the reasons mentioned as above. Therefore, the appellant/A1 cannot agitate again
that the extradition order was terminated by the Courts at Portugal and his
trial in India is without jurisdiction. This point is answered accordingly.
11) POINT No.3:
a) This point is concerned admittedly the charges under Sections 419 and 468
IPC are not covered by Extradition Order dated 28-03-2003.
The said order covers only offences under Sections 120B, 420 and 471 IPC for
which the extraditee can be tried. However, the trial Court tried appellant/A1
for those two additional offences and convicted and sentenced as stated supra.
Hence, the point is whether his trial for those offences is in contravention of
Extradition Order and Section 21 of Extradition Act, 1962.
The issue is no more res integra, since the Honourable Apex Court in its
judgment in Abu Salem Abdul Qayoom Ansari vs. State of Maharashtra (vide 14
supra) has given clarification. The background history of said judgment and also
the subsequent judgment of the Supreme Court of India were already narrated by
me in point No.2 supra. Hence, the ratio of the said judgment has to be applied
to the present case. The ratio in the Supreme Court judgment (vide 14 supra) is
to the effect that a fugitive/accused can be indicted not only for the offences
for which he was extradited but also for the additional offences which provided
for lesser punishment than that of those which are specifically mentioned in the
extradition order. What is lesser offence has been explained in para-29 of the
judgment. It says:
"Lesser offence" means an offence which is made out from the proved facts and
provides lesser punishment, as compared to the offences for which the fugitive
has been extradited.
b) When the above ratio is applied to the two offences under Sections 419 and
468 IPC, Section 419 IPC is undoubtedly a lesser offence than extradited offence
in terms of punishment. However, Section 468 IPC is concerned, the punishment
provided for that offence is 7 years and also fine. As such, the said offence is
not a lesser offence than any of the extradited offences in terms of punishment.
Though it is not a greater offence in terms of punishment, it is equivalent to
Section 420 IPC in terms of punishment.
The Trial Court defended the additional charges on the ground that the maximum
punishment for those offences is not more than 7 years and they are not visited
with death sentence. I am afraid, this observation is not correct in the light
of Supreme Court judgment. It must be said that penal provisions require strict
interpretation. Having regard to it, I hold that trial of appellant/A1 for the
offence under Section 468 IPC is not legally valid and so the conviction and
sentence for the said offence liable to be set aside. This point is answered
accordingly.
12) So, in view of discussion on points 1 to 3 supra, it is held that the
appellant/A1 was rightly convicted and sentenced by the trial Court for all but
for the offence under Section 468 IPC.
13) In the result, this Criminal Appeal is partly allowed and while confirming
the conviction and sentence passed by the trial Court against appellant/A1 for
the offences under Sections 120B, 420, 419 and 471 IPC, conviction and sentence
passed by it for the offence under Section 468 IPC is hereby set aside. The
fine amount if deposited under the said count shall be refunded to him.
_________________________
U.DURGA PRASAD RAO, J.
Date: 20-02-2014
Comments
Post a Comment