Delhi High Court – Orders
National Investigation Agency vs Nitin Gupta & Ors on 14 August, 2025
$~17
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.REV.P. 295/2025 & CRL.M.A. 22725/2025 & CRL.M.A.
22726/2025
NATIONAL INVESTIGATION AGENCY .....Petitioner
Through: Mr. Raja Thakare, ASG with
Mr. Awanish Kumar, SPP with Ms. Garima,
Mr. Abhijeet Kumar, Ms. Supriya, Mr. Rohit
Khare and Mr. Riishikesh Haridas, Advs.
versus
NITIN GUPTA & ORS. .....Respondents
Through: Mr. Pavan Narang, Sr. Adv. with
Mr. Himanshu Sethi and Ms. Ashwarya Chhabra,
Advs.
CORAM:
HON'BLE MR. JUSTICE AJAY DIGPAUL
ORDER
% 14.08.2025
CRL.REV.P. 295/2025 & CRL.M.A. 22725/2025
1. The present criminal revision petition has been filed by the petitioner
assailing the order dated 29.05.2025 passed by the learned ASJ-02, South-
East, Saket Courts, Delhi in SC No. 139/2024, whereby all the accused
persons, i.e. respondents herein, were discharged from all the offences under
Sections 420/467/468/471/120B of the Indian Penal Code, 18601.
2. The case of the prosecution, as borne out from the record, is that in
2010, the Bihar police floated a tender for supply of third generation passive
night vision sights for SLR/INSAS rifles, with the essential condition that
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the bidder be an OEM i.e. original equipment manufacturer. M/s Alligator
Design Pvt. Ltd., posing as an OEM despite being only importer of the
devices participated in the tender process and was awarded the bid on
17.03.2011. the respondents, being directors/employees of M/s Alligator
Design Pvt. Ltd., thereafter, imported the aforesaid devices from American
Technologies Network Corporation, South San Franciso, USA2, by
producing forged receipts, fabricated end-user certificates purportedly issued
in the name of the Chhattisgarh Police Department, and a false Non-transfer
and End-User Certificate. Based on information available with the Central
government, it was suspected that the consignment of night vision devices,
imported on the strength of forged documents, was intended for use by
Naxalite or terrorist groups in waging war against the Union of India. This
suspicion led to the Ministry of Home Affairs to issue order dated
21.03.2013 and directed the petitioner agency to take up the investigation.
3. Pursuant thereto, FIR was registered against the respondents and M/s
Alligator Design Pvt. Ltd. under sections 121/121A/122/420/467/468/471
IPC read with Section 18 of Unlawful Activity (Prevention) Act, 1967.
4. Upon completion of initial investigation, the petitioner filed its first
chargesheet on 22.04.2014 under Sections 420, 467, 468, 471 and 120B IPC
against the respondents.
5. On 28.05.2015, the petitioner filed a supplementary chargesheet,
brining on record the documents received pursuant to a request under the
Mutual Legal Assistance Treaty3.
6. Thereafter, on 22.09.2017, a second supplementary chargesheet was
1
Hereinafter “IPC”
2
Hereinafter “ATN Corp.”
3
Hereinafter “MLAT”
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filed arraying M/s Alligator Designs Pvt. Ltd. as an accused, on the
allegation that the respondents had conspired to secure a contract in its
favour.
7. By order dated 10.08.2020, the learned Trial Court summoned M/s
Alligator Designs Pvt. Ltd. as an accused. However, by a subsequent order
dated 01.06.2022, the summoning order was set aside, though liberty was
reserved to lift the corporate veil during trial.
8. Arguments on charge were heard by the learned Trial Court.
Ultimately, by the impugned order dated 29.05.2025, the learned Trial Court
discharged the accused persons i.e. the respondents.
9. Aggrieved thereby, the petitioner has preferred the present revision
petition before this Court.
10. Learned ASG submits that the impugned order, whereby the learned
Trial Court concluded that the photocopies of the documents received
through MLAT do not fall within the ambit of “evidence” under Section 3 of
the Indian Evidence Act, 19724 is erroneous. It is further argued that the
Trial Court failed to appreciate that once such documents are transmitted
through official channels under the MLAT, accompanied by the requisite
certification, their admissibility cannot be rejected merely on the ground that
the originals have not been produced or that the witnesses cited by the
prosecution from ATN Corp. have not been examined.
11. It is contended that the findings of the Trial Court are contrary to the
provisions of the MLAT between India and the United States. Article 2
thereof designates the Central Authorities of the two States, and Article 8(5)
specifically provides that evidence so produced shall, upon certification in
4
Hereinafter “Evidence Act”
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the prescribed form, be admissible in the courts of the Requesting State.
Where the United States is the Requesting State, such certification is
affected through Forms A and B, conversely, when India is the Requesting
State, the documents so transmitted, if duly authenticated, are to be treated
as admissible under Indian law.
12. Learned ASG relies on the formal request for assistance addressed to
the US Central Authority, wherein, in consonance with Article 8(5) of the
Treaty, India sought authentication under Section 78(6) of the Evidence Act,
1872, by the custodians of records or other duly authorised representatives
having personal knowledge, with certification under the seal of a Notary
Public or Indian Counsel/Diplomatic Agent. Pursuant thereto, the records
were forwarded along with the declaration of Mr. James Munn, custodian of
records of ATN Corporation since 2005, certifying the annexed emails,
business records and transaction details as true and correct copies
maintained in the ordinary course of business. The declaration was duly
notarised and authenticated in accordance with MLAT procedure.
13. It is further submitted that the learned Trial Court failed to appreciate
NIA‟s contention on the non-applicability of Section 166A Cr.P.C., and that
its insistence on production of original MLAT documents, despite due
authentication by competent US authorities, is misplaced. The reliance
placed on Shrichand P. Hinduja v. State5 is also erroneous, since that case
concerned documents obtained from undisclosed sources in the absence of
any MLAT, whereas the present case rests on evidence transmitted directly
under treaty mechanism with proper certification.
14. It is, therefore urged by the learned ASG that the observations in
5
2005 (82) DRJ 494
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paragraph 73 of the impugned order, to the effect that photocopies of
documents received through MLAT do not fall within the definition of
“evidence” under Section 3 of Evidence Act, if sustained, would cause grave
prejudice and result in far-reaching ramifications upon the admissibility of
material procured under international cooperation treaties in proceedings
other than the present case. Learned ASG, therefore, prays for stay of the
operation of the impugned order, submitting that exclusion of such
documents from the purview of admissible evidence would seriously impede
trials where reliance is placed on material received from foreign jurisdiction
under MLAT framework.
15. On the other hand, Mr. Pawan Narang, learned senior counsel for the
respondents, places reliance upon Clause V(b) of the letter dated
01.08.2013, wherein it is stated that the competent authority had sought the
collection and production of the original documents furnished by M/s
Alligator Design Pvt. Ltd. to ATN Corporation, USA, for facilitating the
import of 105 numbers of Passive Night Vision Sights for SLR Rifles
(Model ATN Pro) during the period from March, 2010 to April, 2012. He
emphasises that the petitioner itself had requested for the original
documents.
16. Learned senior counsel further refers to the letter dated 02.07.2014,
which records that, pursuant to Article 7 of the Treaty on Mutual Legal
Assistance in Criminal Matters between the United States and India (in force
since 03.10.2005), the authorisation for the use of the material provided is
confined to the purposes for which assistance was sought and granted. It is
stipulated therein that if the material is to be used for any other purpose, not
stated in the request or approved in the grant of assistance, the requesting
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authority must obtain prior authorisation from the competent office. On this
basis, it is contended that the documents in question cannot be utilised for
trial.
17. At this junction, attention of this Court is also drawn to the purchase
order of M/s Alligator Design Pvt. Ltd. dated 02.08.2011, annexed with the
documents received under MLAT. It is submitted that the said document
bears neither certification nor any countersignature, and is therefore nothing
but a photocopy. It is urged that the learned Trial Court was correct in
holding that such documents do not satisfy the evidentiary requirements.
18. Learned Senior Counsel relies upon the judgment in Sudershan
Singh Wazir v. State (NCT of Delhi) & Ors.6 to contend that no order can
be passed without affording due opportunity of hearing. He reiterates that
the documents relied upon by the petitioner are photocopies, with no
indication as to whose custody the originals are in. Reliance is also placed
upon the Srichand P. Hinduja & Ors. v. State through CBI (supra) to
support the respondents‟ case that forgery could not be sustained because
original documents, on which the case was based, were not produced.
19. Heard learned counsels for the parties at some length.
20. Having given thoughtful consideration to the rival submissions
advanced on behalf of the parties, this Court finds it apposite to advert to the
sanctity attaching to MLAT executed between India and the USA. This
Court cannot lose sight of the solemn character of MLAT, the preamble
whereof itself records the unequivocal intention of the Contracting States,
and reads thus:
“The Government of the Republic of India and the Government of the
6
2025 SCC Online SC 461This is a digitally signed order.
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United States of America, hereinafter referred to as the Contracting
Parties, desiring to improve the effectiveness of the law enforcement
authorities of both states in the investigation, prosecution, prevention, and
suppression of crimes, including those relating to terrorism, narcotics
trafficking, economic crimes and organized crime, through cooperation
and mutual legal assistance in criminal matters.”
21. Therefore, the documents transmitted under such sovereign
arrangement carry with them a presumption of authenticity, unless otherwise
displaced at trial.
22. Adverting to the facts of the present case, the petitioner‟s primary
grievance is that the learned Trial Court has prematurely rejected the
evidentiary value of the documents received under the MLAT from the U.S.,
despite their certification by the lawful custodian of records, Mr. James
Munn. The learned Trial Court, in support of its conclusion, observed that
since the custodian has neither asserted possession of the originals nor
affirmed that the copies were prepared from the original records of M/s
Alligator Designs Pvt. Ltd., such documents cannot be treated as admissible
evidence withing the meaning of Section 3 of the Evidence Act.
23. This Court is unable to accept such reasoning provided by the learned
Trial Court. The production of the original records by the custodian is not a
legal requirement at the stage of charge. What is relevant is that the
documents have been certified by the competent officer in accordance with
the treaty procedure, under official seal, and duly transmitted through lawful
diplomatic channel. The declaration of Mr. James Munn, the lawful
custodian of records, is categorical. Under Section 78(6) of the Evidence
Act, such certified foreign public documents are expressly admissible in
evidence and are deemed to be genuine, unless the contrary is proved. The
declaration of Custodian of Records is reproduced below for ready
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reference:
“DECLARATION OF CUSTODIAN OF RECORDS
I, James Munn, hereby declare as follows:
1. I am a duly authorized custodian of records of American
Technology Network Corp. I have been custodian of records since 2005
and have access to, and personal knowledge of, American Technology
Network Corp’s record-keeping system.
2. I hereby certify that, in my capacity as custodian of records, I have
provided the attached records, described as:
Documents required to Alligator Design Pvt. Ltd. of India for period
January 1, 2008 to present.
3. I further certify that the attached documents are true and correct
copies of documents from American Technology Network Corp’s
recordkeeping system, and that the records (1) were made at or near the
time of the occurrence of the matters set forth by, or from information
transmitted by, a person with knowledge of those matters; (2) were kept in
the course of the regularly conducted activity, and (3) were made by the
regularly conducted activity as a regular practice.
I declare under penalty of perjury under the laws of the United States that
the foregoing is true and correct.”
(emphasis supplied)
24. The learned Trial Court, in effect, has ventured into a premature
assessment of admissibility and probative value, which is wholly
unwarranted at this stage. The veracity of the MLAT documents and their
evidentiary weight are matters to be tested in trial through cross-examination
and other means. At the stage of framing of charge, the Court is only
required to ascertain whether the material, taken at face value, discloses a
prima facie case.
25. Equally misplaced is the Trial Court‟s view that MLAT documents do
not constitute “evidence” under Section 3 of the Evidence Act. Section 3
defines evidence broadly, and when read with Section 78(6), there remains
no doubt that certified foreign records are admissible for consideration.
Section 78(6) of the Evidence Act is reproduced as under:
“Section 78(6). Public documents of any other class in a foreign
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country, – by the original, or by a copy certified by the legal keeper
thereof, with a certificate under seal of a Notary Public, or of [an
Indian Consul] [Substituted by A.O. 1950, for “a British
Consul”.] or diplomatic agent, that the copy is duly certified by the
officer having the legal custody of the original, and upon proof of
the character of the document according to the law of the foreign
country.”
26. It also deserves emphasis that the petitioner‟s case is not confined to
the MLAT documents alone. More material is available on record, including
the statement of the Director General of Police, Chhattisgarh, which
corroborates the case of the prosecution/ petitioner. This evidence has been
altogether overlooked by the Trial Court, which fixated solely upon the
foreign documents. Such an approach has resulted in a failure to appreciate
the cumulative effect to the material placed before the Court.
27. Insofar as Section 471 IPC is concerned, the Trial Court has erred in
concluding that no prima facie case of using forged documents as genuine is
made out. The learned Trial Court proceeded on the premise that the alleged
forged documents were not „used‟, as the originals were not obtained
through MLAT and were not sent to the FSL for opinion. This reasoning is
untenable. The material on record, including the MLAT documents, the FSL
report, and the statements of witnesses, including DGP, Chhattisgarh, prima
facie indicates that forged end-user certificates were used to procure
equipment from ATN Copr. The fact that the documents were used abroad
and have been received in India through MLAT cannot negate the element
of „user‟ under Section 471 IPC. Whether such certificates ultimately qualify
as forged within the meaning of law is a matter to be determined during trial.
At the stage of charge, the requirement is only the existence of grave
suspicion, which clearly arises from the material placed on record.
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28. The reliance placed by the respondents on Shrichand P. Hinduja
(supra) is also misconceived. The said judgment turned upon a situation
where the material documents were not available in their original form and,
further, no copies thereof, duly authenticated in terms of the mandate of the
Indian Evidence Act, were produced by the prosecution. In fact, the
prosecution itself recorded a statement to the effect that “That the relevant
and material documents are not available in original and no copies duly
authenticated in accordance with the Indian Evidence Act are available.”,
as reproduced in para 17 of the said judgment. In contradistinction, in the
present case, the documents in question are certified copies received under
MLAT and are accompanied by a declaration issued by the “custodian of
records”. In Shrichand P. Hinduja (supra), the Court had specifically noted
the absence of due authentication in accordance with the Indian Evidence
Act. However, in the case at hand, the learned ASG has rightly drawn
attention to the fact that the documents stand duly certified in terms of
Article 8(5) of the Treaty, which expressly permits certification for the
purposes of rendering evidence admissible in the Requesting State. The
petitioner has not conceded to any absence of evidence; rather, the challenge
is confined to the learned Trial Court‟s interpretation as to what constitutes
admissible evidence in the context of an international treaty regime. The
decision in Shrichand P. Hinduja (supra) is, accordingly, clearly
distinguishable in the factual and legal backdrop of the present matter,
which involves evidence procured through a formal and legally recognised
treaty mechanism, accompanied by due certification and authentication.
29. Likewise, the observation that the absence of statements of witnesses
recorded under Section 161 CrPC weakens the petitioner‟s case is untenable.
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The recording of such statements is not mandatory in every situation, and
the absence thereof cannot, by itself, dilute the evidentiary worth of the
material placed on record. In any event, the authenticity of the documents
received under MLAT shall be subject to scrutiny when the concerned
witnesses are examined during the course of trial.
30. The learned Trial Court, however, appears to have transgressed
beyond the permissible scope at the stage of framing of charge. At this stage,
the Court is required only to ascertain whether the material placed on record,
taken at its face value, discloses a prima facie case, and not to assess its
ultimate admissibility or credibility. The learned Trial Court appears to have
prematurely dismissed the evidentiary value of the documents received
under MLAT without fully considering the procedural framework for
providing such documents under Indian law. The learned Trial Court‟s
observations regarding the inadmissibility of the documents at the stage of
framing of charges has caused grave prejudice to the prosecution, as the
evidentiary value of such documents is legally assessed during trial. In this
backdrop, this Court is of the view that the findings in paragraph 73 of the
impugned order require further examination.
31. Accordingly, issue notice to the respondents. Mr. Himanshu Sethi,
learned counsel for the respondents, accepts notice. Reply be filed within
four weeks from today. Rejoinder thereto, if any, be filed within two weeks
thereafter.
32. The findings recorded in paragraph 73 of the impugned order, insofar
as they relate to the evidentiary value of the documents received under
MLAT, shall remain stayed till further orders. This stay shall be limited to
the findings in paragraph 73 of the impugned order and shall not affect the
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overall discharge order passed by the learned Trial Court.
33. List the matter for further hearing on 12.12.2025. Parties are directed
to file all relevant documents and their respective written submissions before
the next date of hearing.
AJAY DIGPAUL, J
AUGUST 14, 2025
Sk/dd
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