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Lior Avi Ben Moyal vs Narcotics Control Bureau


Court: Punjab-Haryana High Court


Lior Avi Ben Moyal vs Narcotics Control Bureau on 28 November, 2008

Law Point:
Audio-Video evidence, use of voice experts to test voice samples. Requiring accused to record voice not infringment under article 20(3) of Indian Constitution.





Petitioner is facing prosecution for an offence under N.D.P.S.Act with the allegation that he was found in conscious possession of 154.50 Kgs. of charas. The case set up by the petitioner is that he was picked up by N.C.B. officials from Panipat at 4.30 P.M. on 9.2.2005. The petitioner is Israeli National and was implicated by N.C.B. on the basis of a secret information received by Headquarters at Delhi. On the basis of this information, Intensive Surveillance was carried out which revealed that petitioner along with a Czech National and one Narinder Gupta was conspiring to smuggle out a huge consignment of charas. On 9.2.2005, a secret information was received by one Intelligence Officer Ravi Kant Pawar that the petitioner along with his co-accused were suspected to be hiding in Plot No.653, Industrial Area, Phase-1, Chandigarh. Mr.Ravi Kant Pawar constituted a team and reached the said plot at about 2.00 P.M. in the after-noon. It is then that the petitioner and his co- accused were apprehended with 154.50 Kgs.of charas. The petitioner and his co-accused were accordingly arrested. The petitioner accordingly is facing prosecution.

During the pendency of the proceedings, Mr.Ravi Kant Pawar was apprehended while accepting bribe of Rs.40,000/- from one Devinder Kumar, brother of Navinder Kumar, co-accused of the petitioner. He was then arrested by C.B.I.Chandigarh and R.C.No.18 dated 21.6.2006 was registered under Section 7 of the Prevention of Corruption Act. The examination of the witnesses is in progress. The case set up by the petitioner is that he has been falsely implicated after having been arrested from Panipat on 9.2.2005. His case further is that he is shown arrested from Chandigarh.

To substantiate his defence, the petitioner has produced on record a recorded conversation of Mr.Ravi Kant Pawar, where he has admitted that the petitioner was arrested from Panipat and thereafter brought to Chandigarh. In the video recording, Mr.Ravi Kant Pawar even admitted that he would give all necessary details of phone call records, which would clearly establish that he was at Panipat at the relevant time where he arrested the petitioner.

FIR No.782 dated 18.12.2007 also stands registered against Mr.Ravi Kant Pawar and three others alleging that petitioner was abducted from Panipat on 9.2.2005 and falsely implicated in the present case. It is alleged that Mr.Ravi Kant Pawar had demanded a ransom of Rs.three crores to release the petitioner as otherwise he threatened to involve the petitioner in a case under the N.D.P.S.Act. The petitioner complains that prosecution had deliberately held back Mr.Ravi Kant Pawar from examination and for that purpose sought repeated adjournments. When Mr.Ravi Kant Pawar was produced as witness and was to be cross-examined, an application was made for playing the Video CD, which contained the conversation recorded with Mr.Ravi Kant. His cross-examination was deferred. This request was allowed and the Audio/Video CD was played. Ravi Kant Pawar was then questioned about his voice/picture appearing on Audio/Video CD etc. He denied that the voice appearing on the CD was his. The contents of the CD were also termed as wrong. Mr.Ravi Kant Pawar replied in the negative when questioned if he was prepared to give his sample voice. Defence then moved an application for directing the witness to give his sample voice so that it could be got compared with Audio/Video CD, which had been prepared by carrying out a sting operation.

As is apparent, the defence wants to ask these questions to shake the credit of the witness by injuring his character and in the process wishes to impeach the credit of the witness. Such line of questioning during cross-examination is regulated by Sections 146 and 155 of the Evidence Act.Section 146 of the Evidence Act provides that when a witness is cross-examined, he may be questioned which tends to test his veracity to shake his credit by injuring his character. As per the Section, the cross-examining party is entitled to question a witness in addition to other questions, such questions which tend to test the veracity of a witness or to discover who he is and what is his position in life. He can further be questioned to shake his credit by injuring his character, although answer to such questions might tend directly or indirectly to criminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture. To an extent, this section is controlled by Section 153 of the Evidence Act, which talks of exclusion of evidence to contradict answer to question testing veracity. When a witness has answered any question which is relevant to enquiring as it tends to shake his credit by injuring his character, then no evidence is to be given to contradict him. There are, however, two exceptions to this section and, thus, evidence about previous conviction can be given when the witness denies that he was previously convicted. Secondly he can be contradicted when the witness denies facts suggested to impeach his impartiality. This evidence to contradict answer given to testing veracity would be permissible under these exceptions, though otherwise evidence to contradict a witness testing veracity is excluded.

Section 155 of the Evidence Act permits impeaching the credit of witness. It can be done by evidence of persons, who from their knowledge believe him to be unworthy of credit or by proof that the witness has been bribed etc. or by proof of former statements inconsistent with any part of his evidence. It is this part of the Section which would be relevant to decide the issue in the present case as the defence wants to contradict the witness by proof of his former statement recorded on the tape which is inconsistent with part of his evidence.

The operation of these sections came up for consideration before Hon’ble Supreme Court in Shri N.Sri Rama Reddy etc. Vs. Shri V.V.Giri, 1970 Supreme Court Cases 340 and it is observed as under:-

“In this connection counsel relied upon Section 146, exception 2 to Section 153 and clause (3) of Section 155 of the Evidence Act. Section 146 deals with questions lawful in cross-examination and, in particular, clause (1) thereof provides for a witness being cross-examined by questions being put to him which tend to test his veracity. Section 153 generally deals with exclusion of evidence to contradict answers to questions testing veracity, but Exception 2 states that if a witness is asked any question tending to impeach his impartiality and answers it by denying the facts suggested, he may be contradicted. Section 155 deals with impeaching the credit of witness by the various ways dealt with in clause (1) to (4). One of the ways by which the credit of a witness may be impeached is dealt with in clause (3) and that is by proof of former statements inconsistent with any part of his evidence, which is liable to be contradicted. Mr.Daphtary pointed out that Section 146 may be read with Section

153. We cannot accept this contention in its entirety. It may be that clause (3) ofSection 146 may have to be read along with the main Section 153 but clause (1) ofSection 146 and Exception (2) to Section 153 deal with different aspects. UnderSection 146(1) questions may be put to a witness in cross-examination to test his veracity and, under Exception 2 to Section 153 a witness may be contradicted when he denies any question tending to impeach his impartiality.”

After referring to various different decisions, the Hon’ble Supreme Court held in N.Sri Rama Reddy’s case (supra) that previous statement cannot only be used to corroborate the evidence but as well as to test the veracity of the witness and also to impeach his impartiality. The observations of the Court are as under:-

“Having due regard to the decisions referred to above, it is clear that a previous statement, made by a person and recorded on tape, can be used not only to corroborate the evidence given by the witness in Court but also to contradict the evidence given before the Court, as well as to test the veracity of the witness and also to impeach impartiality. Apart from being used for corroboration, the evidence is admissible in respect of the other three last- mentioned matters, under Section 146(1), Exception 2 to Section 153 and Section 155(3) of the Evidence Act.

Therefore it is not possible for us to accept the contention of Mr.Daphtary that the previous statement can be used only for purposes of corroboration but not for the purpose of contradicting the evidence given before the Court. If a previous statement made by a person can be used to corroborate his evidence given before the Court, on principle, we do not see any reason why such previous statement cannot be used to contradict and also for the other purposes referred to above. In particular the fact that the decisions of the Punjab and Calcutta High Courts Rup Chand’s case (supra) and Manindra Nath’s case (supra), where the previous statements have been used to contradict the evidence given before the Court has been approved by this court in Yusuffali’s case (supra), clearly establishes that the contention of Mr.Daphtary that the previous statement cannot be used to contradict the evidence given before the Court cannot be accepted. As pointed out already, Mr.Daphtary has not challenged the correctness of the decision in Yusuffalli’s case (supra). Therefore the first ground of objection raised by Mr.Daphtary will have to be over-ruled.”

Reference may also be made to the provisions of Section 147 of the Evidence Act, which regulates as to when can a witness be compelled to answer. If any question relates to a matter relevant to the suit or proceeding, then provisions of Section 132 shall apply thereto. Section 132 of the Evidence Act provides that witness is not to be excused from answering on the ground that the answer will criminate him as no such answer, which a witness is compelled to give, shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution for giving evidence by such answer. Thus, this section has been made to protect a witness so that he is made to give evidence without any fear of being prosecuted on that ground.

Section 148 Cr.P.C. then empowers the court to decide when question shall be asked and when witness is to be compelled to answer. A question which is relevant so far as it affects the credit of the witness by injuring his character, the court is to decide whether or not the witness shall be compelled to answer. The considerations on which the court is to exercise this discretion is also given in the section itself. Such questions are to be considered proper if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the court as to the credibility of a witness on the matter to which he testifies. Seen in this background, the questions which are being addressed to the witness can be said to be of such a nature that these may go to affect the opinion of the court as to the credibility of this witness.

It is required to be seen in this background if the prayer of the petitioner to direct the witness to give his sample voice has been rightly declined or not. The order declining the prayer for giving sample voice is impugned through the present revision petition.

Mr.R.S.Cheema, Senior counsel for the petitioner has taken me through the impugned order to submit that the request of the defence has been declined on the ground that this application has been filed with ulterior purpose to defer the cross-examination and to delay the proceedings. It is also noticed that the alleged Video/Audio CD does not pertain to the occurrence and is only produced to show the subsequent conduct of the witness to shake his credibility. Counsel contends that the trial court apparently has failed to take the valid grounds into consideration while considering the prayer of the petitioner.

It is true that the Video pertains to something which is not concerning the incident as such, but the conversation contained therein appears to be well connected with the defence projected by the petitioner. The plea of the defence is that the petitioner was picked up from Panipat and had been shown to have been arrested at Chandigarh. The plea further is that he has been falsely implicated when he did not meet the demand for ransom. The witness Mr.Ravi Kant Pawar is facing charges in this regard and two FIRs have been lodged against him. This conversation in regard to the facts of this case has been recorded by a sting operation, which cannot be considered totally unconnected to the facts in issue. The court has apparently not appreciated that proof of this statement recorded on tape would be permissible to impeach the credit of the witness and this evidence may not be open to be excluded.

The court has already granted the prayer to play the Video/Audio. Once the court had permitted the defence to play this Video/Audio Cassette, the prayer for getting the voice compared may have to be considered in that light, so that this issue is brought to a logical conclusion.

The State counsel instead of addressing himself to the relevant issues, i.e., whether such a prayer could legally be entertained and allowed, went at tangent to say that in the application moved by the petitioner (copy of which has been taken on record today through the misc.application moved by respondent’s counsel), no details in regard to Video/Audio cassette have been given and assuch the application is vague and cannot be granted. Learned counsel for the petitioner, however, is justified in saying that the Video/Audio cassette need not have been referred to in the application as these have already been taken on record and played as well. The issue being agitated in the present revision petition is only to see if the witness can be directed to give his sample voice for the purpose of comparison with the voice which is available on the Audio Cassette. To substantiate his plea that such a direction can be issued by the court, the learned counsel for the petitioner has drawn my attention to Dial Singh Narain Singh Vs. Rajpal Jagan Nath and others, AIR 1969 Punjab and Haryana 350, where this court has held that fresh tape-recording for comparison of earlier recorded voice is admissible. This court besides holding that tape is admissible went on to observe about manner and mode of its proof and the use thereof in a trial which is referred to as a matter of detail. It is by now fairly settled that a witness can be confronted with his earlier statement recorded on tape and this admits hardly of any doubt. As already noticed, certain questions are permissible during cross- examination to shake the credit of a witness by injuring his character in terms of Section 146 of the Indian Evidence Act. Tape-recorded statement, if available for confronting a witness, can, thus, legitimately be used for the purpose of shaking the credit of the witness. In fact, this was so held in Rup Chand Vs. Mahabir Parshad, AIR 1956 Punj 173. Accordingly, this Court in Dial Singh Narain Singh’s case (supra) very aptly observed that for use of an earlier tape-recorded statement, the identification of the taped voice would be crucial and indeed such proper investigation would be the sine quo non for the use of earlier tape-recording. The Full Bench referred to the observations of the Hon’ble Supreme Court in the case of Esmail Nagree Vs. State of Maharashtra, AIR 1968 SC

147. It is held that when the tape-recorded voice is admitted, obviously the case will not present any difficulty. Where it is denied, then the comparison of the voice would become inevitable. Accordingly, the order passed by the court under challenge before the Full Bench allowing comparison of the voice was held sustainable.

Reference is also made to the case of Nirmala Vs. Ashu Ram, 2000(4) R.C.R. (Criminal) 529, where tape-recorded statement is held to be a relevant fact and admissible under Section 7 of the Evidence Act. Relying upon the decision of this court in Dial Singh Narain Singh’s case (supra), the court has also held that if the voice is denied by the maker thereof, then the court can allow the voice of the maker to be recorded for the purpose of identification of his earlier recorded voice. The counsel would then refer to the recent decision in Central Bureau of Investigation, New Delhi Vs. Abdul Karim Ladsab, Telgi and others, 2005 Cri.L.J.2868 (known as Telgi case), where application for permission to record voice sample of the accused for the purpose of identification of his voice to compare it with the tape-recorded telephonic conversation was allowed. It was further held that requiring accused to record his voice sample would not infringe Art. 20(3) of the Constitution of India as it does not amount to `testimonial compulsion’. The plea raised in this case that there are voice experts who can easily concoct or tamper voice of any person, or that accused can change their voice, if they are compelled to give voice sample etc. was also not considered sufficient to reject the prayer for examining the voice by an expert to compare with the tape-recorded version. There are thus, sufficient precedents available where the prayer for recording the sample voice for the purpose of comparison has been considered and allowed by the courts. So-much-so even accused has been asked to give his sample voice for the purpose of comparison and the plea that it would amount to `testimonial compulsion’ was not accepted.

In R.M.Malkani Vs. State of Maharashtra, (1973) 1 SCC 471, the Hon’ble Supreme Court has clearly held that tape-recorded conversation is admissible provided first the conversation is relevant to the matters in issue; secondly there is identification of the voice; and, thirdly, the accuracy of the tape-recorded conversation is proved by eliminating the possibility of erasing the tape-record. Thus, one of the precondition for admissibility of tape-recorded conversation is identification of voice. If that be so, then it cannot be held that prayer for requiring an accused or a witness to lend his voice for the purpose of identification of voice in the tape-recorded conversation would not be permissible. With the advances made in the field of Science and Technology, various aids are available for establishing the identity of a person, i.e., finger prints, palm impression, thumb impression, foot marks, blood samples, D.N.A. Tests, specimen of handwriting, signature or exposing a part of the body or the like. It can be said without any fear of contradiction that voice of a person is a personal trait, like handwriting or signatures, which are also associated with the traits of a person. It may be noticed that aid of voice identification is being employed by the police during investigation for identifying individual by the time, frequency, and intensity of their speech-sound waves. As observed in Telgi’s case (supra), a sound spectrograph is employed to record these waves in the form of a graph that may be compared to graphs of other individuals and differentiated. Thus, for the purpose of comparison, the expert would require the original recording of the voice of the concerned person or at least the best quality if the original is not available. If the voice is to be associated with an individual or his person and a personal trait, then scientific analysis for identification of the voice is possible. If that be so, there should not be any inhibition in taking the voice sample of a person.

Once it is held that a person can be asked to give his sample voice for the purpose of comparison, another question which may arise for consideration is whether the prayer would be relevant for determining the issue in the present trial, which the petitioner is facing. The recording on the Video cassette apparently is concerning the defence, which the petitioner has taken before the trial court to plead his false implication. In my view, the petitioner should be given proper opportunity and latitude to substantiate his defence and should not be curtailed in his effort to prove his innocence. An accused has a constitutionally guaranteed fundamental right underArticle 21 of the Constitution of India to a fair trial. Right to defend himself is also a part of his such fundamental right as also his human right. An accused person must get all fair and proper opportunities to prove his innocence. The petitioner is in the process of establishing his defence. The plea is not that far fetched that it should be rejected. The witness is NCB officer, who arrested the petitioner. The said officer is facing two FIRs in connection with this case. Denial of opportunity to lead the evidence or to curtail this right may mean denial of fair trial. The courts have always been zealously guarding the rights of accused person so as to ensure that there is no breach of any of such rights guaranteed to any person, accused of offence. The conversation as recorded on the Video tape cannot be said to be so unconcerned as to not affect the opinion of the court as to the credibility of this witness.

Accordingly, the order declining the prayer of the petitioner for this witness to give his sample voice cannot be sustained. The same is set aside. The parties through their counsel are directed to appear before the trial court which shall call the witness and direct him to give his sample voice for the purpose of comparison. For this limited purpose, further cross-examination of the witness may be deferred. The examination of remaining prosecution witnesses may continue. The petitioner would be entitled to further cross-examine the witness after obtaining the report of the expert. It needs to be clarified that the opinion of the expert would be placed before the court, even if it goes against the petitioner because the same is being allowed at his instance.

The present petition is accordingly disposed of.


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