CR.A/916/2002 1/104 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 916 of 2002 With CRIMINAL APPEAL No. 883 of 2002 With CRIMINAL APPEAL No. 910 of 2002 With CRIMINAL APPEAL No. 925 of 2002 With CRIMINAL APPEAL No. 856 of 2002 With CRIMINAL APPEAL No. 919 of 2002 With CRIMINAL APPEAL No. 780 of 2002 With CRIMINAL APPEAL No. 945 of 2002 With CRIMINAL APPEAL No. 942 of 2002 With CRIMINAL APPEAL No. 941 of 2002 With CRIMINAL APPEAL No. 918 of 2002 With CRIMINAL APPEAL No. 1034 of 2002 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MR.JUSTICE R.H.SHUKLA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= NOORMAMAD YAKUBBHAI SAIYAD - Appellant(s) Versus STATE OF GUJARAT - Respondent(s) CR.A/916/2002 2/104 JUDGMENT ========================================================= Appearance : Criminal Appeal No.916 of 2002 MR NK MAJMUDAR for Appellant Criminal Appeal No.883 of 2002 Mr. BD Karia for the appellant Criminal Appeal No.910 of 2002 Mr MM Tirmizi for the appellant Criminal Appeal No.925 of 2002 Mr. Mahesh Bhavsar for the appellant Criminal Appeal No. 856 of 2002 Mr EE Saiyed for the appellant Criminal Appeal No. 919 of 2002 Mr. MC Barot for the appellant Criminal Appeal No.780 of 2002 Mr Nigam R. Shukla for the appellant Criminal Appeal No.945 of 2002 Mr. Jal Soli Unwala for the appellant Criminal Appeal No. 942 of 2002 Mr. Nilesh I. Jani for the appellant Criminal Appeal No. 941 of 2002 Mr. YS Lakhani for the appellant Criminal Appeal No. 918 of 2002 Mr. MC Barot for the appellant Mr. RC Kodekar APP for respondent – State of Gujarat in all appeals. Criminal Appeal No. 1034 of 2002 Mr. RC Kodekar, APP for the appellant – State of Gujarat Mr Dharmesh D. Nanavati for respondent – accused. ========================================================= CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE R.H.SHUKLA Date : 01-09/04/2008 COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.M.KAPADIA) CR.A/916/2002 3/104 JUDGMENT 1. Fourteen accused (A-1 to A-14) were charged and tried by the learned Additional City Sessions Judge, Court No.9, Ahmedabad for the offences under Sections 489B read with Section 120B and section 489C of the Indian Penal Code ('IPC' for short) on the accusation that they all hatched criminal conspiracy for circulation of fake currency notes in the market and as a part of the conspiracy, when they were apprehended and arrested, they were found with huge quantity (worth lakhs of rupees) of fake currency notes of Rs.500 denomination and they also put the fake currency notes in circulation through a bank cashier i.e., accused No.6 – Ramchandra alias Raju Somabhai Patni. At the end of the trial, all the accused persons, except A-8, A-9 and A-11, were found guilty of the offences punishable under various Sections of IPC and, therefore, vide judgment and order dated 30.8.2002 all the accused except A-8, A-9 and A-11 were convicted by the trial court for various offences CR.A/916/2002 4/104 JUDGMENT punishable under IPC and sentenced to undergo imprisonment for various terms as per the details mentioned below: Accused No. Cr.Appl No. Conviction u/s. of IPC Term of sentence 1. 916/02 489B r/w.120B 489C Imprisonment for life RI for 5 years 2. 883/02 489B r/w.120B 489C Imprisonment for life RI for 5 years 3. 910/02 489B r/w.120B 489C Imprisonment for life RI for five years 4. 925/02 489B r/w.120B 489C Imprisonment for life RI for five years 5. 856/02 489B r/w.120B and 489C RI for 5 years 6. 916/02 489B r/w.120B 489C Imprisonment for life RI for five years 7. 780/02 489C RI for five years 10. 945/02 489C RI for five years 12. 942/02 489B r/w.120B 489C Imprisonment for life RI for five years 13. 941/02 489B and 489C RI for ten years 14. 918/02 489B r/w.120B 489C Imprisonment for life RI for five years. It is also ordered that all the substantive sentences imposed under Sections 489B read with Section 120B and Section 489C shall run concurrently. 2. Aggrieved by the above judgment and order of CR.A/916/2002 5/104 JUDGMENT conviction and sentence, all the accused persons, except A-8, 9 and 11, have filed instant batch of eleven conviction appeals with the aid of Section 374 of the Code of Criminal Procedure ('the Code' for short). The details of the criminal appeals filed by the accused are as under: Accused No. Name of the accused Criminal Appeal No. A-1 Noormohmed alias Bhaiya Yakub Saiyed 916/2002 A-2 Aslam Afridkhan Pathan 883/2002 A-3 Jabir Shermohmed Memon 910/2002 A-4 Mahendrakumar Chimanlal Shah 925/2002 A-5 Alimohmed alias Manubhai Mohmedkhan Pathan 856/2002 A-6 Ramchandra alias Raju Somabhai Patni 919/2002 A-7 Sanjiv Kishanlal Soni 780/2002 A-10 Paresh Maheshbhai Soni 945/2002 A-12 Prafulchandra Mahanlal Soni 942/2002 A-13 Vasant Jayantilal Trivedi 941/2002 A-14 Kalubhai alias Bharat Ratilal Panchal 918/2002 2.1. It may be noted that State of Gujarat has filed Criminal Appeal No. 1034 of 2002 under Section 378 of the Code against the acquittal of CR.A/916/2002 6/104 JUDGMENT A-7 of the offence punishable under Section 489B read with Section 120B IPC. It may also be noted that State of Gujarat has not chosen to file appeal against the acquittal of A-8, A-9 and A- 11. 3. The prosecution case as disclosed from the FIR as well as the secret information received by P.W.28, Abhaysinh D. Chudasma, DCP, ATS and unfolded during trial is as under: 3.1. On 29.7.2000, when P.W.28, Abhaysinh D. Chudasma, DCP, ATS was on duty, at about 10 O' clock in the morning, he received a secret information from one of his informants that on that day A-1, Noormohmed alias Bhaiya Yakub Saiyed, a resident of village Sami, and other associates who were engaged in dealing in fake currency notes, were to pass from Naroda via Kotarpur towards Indira Bridge in a Maruti Fronty Car No.GJ-1-HE-353. On receipt of the said secret information, Abhaysinh conveyed the said secret CR.A/916/2002 7/104 JUDGMENT information to his senior officers. K.G. Vaghela, PSI was directed to procure two persons to act as panchas. In the meanwhile, the DIG, who was in charge of the ATS, also came in the office and he was also orally informed about the secret information received by Abhaysinh. On arrival of panchas, they were informed about the secret information received by Abhaysinh and asked as to whether they were ready to act as panchas and upon their giving consent to act as panchas, the first part of the panchnama was prepared. Thereafter the raiding party boarded two Maruti Gypsy vehicles and went towards the spot, which according to the secret information received, was the place where a transaction was likely to take place with regard to fake currency notes. 3.2. On reaching the spot which corresponded to the secret information so received, the police vehicles were parked at such a place that they were not easily visible from the road. P.W.26, K.C. Chudasma, PI was directed by Abhaysinh to CR.A/916/2002 8/104 JUDGMENT take position near the curve on the road. After taking all these precautions, when they were waiting, they found that a car corresponding to the description and bearing the registration number identical to what was conveyed in the secret information, was coming towards Naroda. In compliance of the directions of his superior officer, when the said car reached at the spot where the members of the raiding party were standing in watch, KC Chudasma gestured the driver of the car to stop and the said vehicle was directed to be taken to a side of the road. All the members of the raiding party including Abhaysinh approached the said vehicle and found that five persons were sitting in the car. On being questioned, the driver of the car disclosed his name to be Aslam Afridkhan (A-2), the person seated next to the driver disclosed his name to be Noormohmed Bhaiya (A-1), the person seated directly behind the driver identified himself as Mahendrabhai Chimanlal Shah (A-4), the person directly seated behind A-1 identified himself to CR.A/916/2002 9/104 JUDGMENT be Ali Mohmed Pathan (A-5) and the person seated between A-4 an A-5 identified himself to be Jabir Shermohmed Memon (A-3). Thereafter each of the accused was ordered to come out of the car and each of them and their belongings were searched in the presence of panchas by the members of the raiding party. In the course of the search, it was found that most of the accused were possessing large amounts of cash, that too in currency notes of Rs.500 denomination. On careful scrutiny of some of such notes, they, prima facie, appeared to be fake. The fake currency notes as also other incriminating articles having evidentiary value were recovered from each of the accused. 3.3. A-1 was found with an amount of Rs.4,200/- in cash, in currency notes of Rs.100 denomination which was recovered from his pocket. He was also found in possession of a green coloured hold-all bag which contained his clothes on the top and beneath the layer of such clothes, CR.A/916/2002 10/104 JUDGMENT an amount of Rs.5,00,000/- in currency notes of Rs.500 denomination was recovered. In addition thereto, a driving licence issued by RTO, Mehsana was recovered from the said bag. The incriminating evidence including the bag, currency notes as also the driving licence were seized and panchnama in this regard was drawn. 3.4. Upon search of A-2, an amount of Rs.5,000/- in cash in currency notes of Rs.100 denomination, a telephone bill and a PUC Certificate in respect of the car used for the commission of the crime were recovered from the right side pocket of his pant. An amount of Rs.20,000/- in currency notes of Rs.500 denomination were recovered from the left side pocket of his pant which items were seized by drawing a panchnama. 3.5. On search of A-3, two telephone bills, Rs.700/- in cash and an amount of Rs.30,000/- in 60 currency notes of RS.500 denomination were CR.A/916/2002 11/104 JUDGMENT recovered from the left side pocket of his pant which too were seized by drawing panchnama. 3.6. Upon search of A-4, an identity card bearing photograph of the said accused issued by the Consumer Protection Council together with 42 currency notes of Rs.100 denomination were recovered from him. A rexine bag was found with him which contained, amongst other things, 50 fake currency notes of Rs.500 denomination, tied in a bundle beyond which a large number of fake currency notes of Rs.500 denomination were found to be rolled up in the shape of bundles and ten such bundles were found in the said bag possessed by A-4. Each of the bundles were wrapped in white paper and it was found that each roll contained 50 fake currency notes of Rs.500 denomination and the total value of such fake notes seized from A- 4 amounted to Rs.2,75,000/- A cheque drawn in favour A-4 was also found from the said bag. In addition thereto a diary was also recovered and seized and all these items were seized by drawing CR.A/916/2002 12/104 JUDGMENT panchnama. 3.7. On search of A-5, an amount of Rs.250/- in cash was found and it was recovered by drawing panchnama. 3.8. It is the case of the prosecution that all the muddamal articles which were seized from the accused persons were separately wrapped and sealed in terms of the panchnama Ex.105 which was drawn at the scene of the offence. After noting down the engine number and chassis number, the Maruti Car was also seized vide the same panchnama. It is further case of the prosecution that though prima facie convinced that all the currency notes of Rs.500 denomination recovered from each of the accused were fake, Abhaysinh Chudasma, DCP, compared such fake notes with a genuine currency note of Rs.500 which was in his possession and it was found that there were clear discrepancies and differences between genuine currency note and the notes recovered from the CR.A/916/2002 13/104 JUDGMENT accused, which differences were narrated in the Panchnama. 3.9. It is the case of the prosecution that on completion of the panchnama Ex.105, Abhaysinh Chudasma, DCP directed P.W.26, K.C. Chudasma, PI who was one of the senior members of the raiding party, to lodge a complaint and accordingly KC Chudasma dictated the complaint before Abhaysinh Chudasma and thereafter the said complaint was lodged before Sardarnagar Police Station where it was registered at CR No.I-177/2000. 3.10. It is the case of the prosecution that A- 1 to A-5 were arrested on the day of the raid and were taken on police remand till 12.8.2000. It is further case of the prosecution that in the course of investigation and interrogation of A-1 to A-5, the extent and gravity of the illegal act of the accused came to light and it was found that large number of fake currency notes were circulated in the market through the other CR.A/916/2002 14/104 JUDGMENT accused. 3.11. It is further case of the prosecution that A-6, Ramchandra alias Raju Somabhai Patni, who was at the relevant time employed as a cashier in State Bank of India, Odhav Branch, and who came in contact with A-4, Mahendrakumar Chimanlal Shah, was arrested on 30.7.2000. He was induced into possessing and circulating fake currency notes of RS.500 denomination to unsuspecting customers in the said bank. A-6 was remanded to police custody till 13.8.2000. 3.12. It is the case of the prosecution that about ten days prior to the arrest of A-6, P.W.4, Dineshpuri S. Goswami, was present at a meeting where A-6 was introduced to A-4, Mahendrakumar Chimanlal Shah, and A-6 being induced into possessing and circulating fake currency notes of RS.500 denomination came into possession of fake currency notes of Rs.1,31,000/- and thereafter taking undue advantage of his capacity as a CR.A/916/2002 15/104 JUDGMENT senior and responsible officer of State Bank of India, Odhav Branch, he substituted fake currency notes of Rs.500 denomination amounting to Rs.1,00,000/- with genuine currency notes deposited in the said branch by a company operating in the name and style of M/s. Rupangi Impex, which amount was deposited towards the payment of Excise duties of the said concern. A-6 who was on duty as a receiving cashier in the Odhav Branch of State Bank of India passed on the said bundle of fake currency notes amounting to Rs.1,00,000/- to one Paresh S. Desai who was a Senior Accountant in a manufacturing concern functioning in the name and style of M/s. Indian Electro Chemicals Limited, for the purpose of disbursing salary to the workers of the said concern, which salaries were to be disbursed in cash. On revelation of these state of affairs, the investigating officer approached Indian Electro Chemicals Limited and disclosed the fact that such fake currency notes would have been circulated amongst the unsuspecting workers of CR.A/916/2002 16/104 JUDGMENT the concern while disbursing their salaries. Thereafter a notice was pasted on the premises of Indian Electro Chemicals Limited calling upon the workers to redeposit with the said company any currency notes of Rs.500 denomination that would have been received by such workers in their salary packets and consequently 153 fake notes of Rs.500 denomination were tendered by the workers to Paresh S. Desai, which were seized and recovered in terms of panchnama Ex.152. Subsequently by drawing panchnama Ex.167, 9 more currency notes were recovered from the workers of Indian Electro Chemicals Limited and one more currency note was seized by panchnama Ex.163. Further investigation also established that A-6 had substituted an amount of Rs.1,00,000/- of genuine currency notes lying with State Bank of India, Odhav Branch with fake notes of Rs.500 denomination. The said amount was deposited by a Peon of Rupangi Impex and on the said bundle of currency notes the said Peon P.W.13, Bharat Mohanlal Thakore, had made his initials and the CR.A/916/2002 17/104 JUDGMENT said bundle was recovered from the residence of A-6 in terms of recovery panchnama Ex.162. 3.13. It is further case of the prosecution that in the course of investigation it was also found that A-7, Sanjay Kishanlal Soni, who was a bullion merchant, accustomed to dealing in cash, was also induced and roped in by the accused and A-7 was arrested on 30.7.2000 and till 13.8.2000 he was remanded to police custody. An amount of Rs.1,23,000/- was discovered and recovered at the instance of A-7 and 246 fake currency notes of Rs.500 denomination were recovered from the shop of A-7 in terms of recovery panchnama Ex.160. 3.14. On further investigation, A-8, Bharat alias Javed Punamchand Prajapati, came to be arrested on 4.8.2000 and he was remanded to police custody till 18.8.2000. A cell phone allegedly used by the co-accused while dealing with him was tendered by him and the same was seized in terms of panchnama Ex.164. But no fake CR.A/916/2002 18/104 JUDGMENT note or related evidence was discovered or recovered from him. 3.15. In the meanwhile, on 10.8.2000, A-9, Iqbal Habib Saiyed, who happened to be the nephew of A-1 Noormohmed, was arrested and was remanded to police custody till 17.8.2000. However, no document, incriminating evidence or fake currency note was recovered or discovered at the instance of A-9. 3.16. It is further case of the prosecution that A-10, Paresh Maheshbhai Soni, who was a bullion merchant and dealing in large sums in cash, was induced into possessing and subsequently circulating fake currency notes of Rs.500 denomination was arrested on 10.8.2000 and till 17.8.2000 he was remanded to police custody. 100 fake currency notes of the denomination of Rs.500 totalling to Rs.50,000/- were recovered from his residence at his instance in terms of recovery panchnama Ex.166. CR.A/916/2002 19/104 JUDGMENT He had disclosed that such amount represented a part of the amount of Rs.1,50,000/- obtained in fake currency notes of Rs.500 denomination from A-7, Sanjay Kishanlal Soni. 3.17. It is further case of the prosecution that during the course of further investigation, on 10.8.2000, A-11, Amulakh Nihalchand Thakkar, was arrested. He was a bullion dealer and was interconnected with A-7 and A-10. It may be noted that no fake currency note or incriminating evidence was found at his instance. 3.18. It is further case of the prosecution that on 12.8.2000, A-12, Prafulchandra Mahanlal Soni, who was closely connected with A-1, A-4 and A-12 was arrested and remanded to police custody till 17.8.2000. An amount of Rs.59,500 comprising 119 fake currency notes of Rs.500 denomination was recovered from his residence vide recovery panchnama Ex.153. There were independent witnesses, who, during the course of the CR.A/916/2002 20/104 JUDGMENT investigation, disclosed that A-12 had made serious efforts to induce them into such illegal activities and A-12 was making serious efforts to circulate fake currency notes in the market through others. 3.19. It is the case of the prosecution that on 12.8.2000, A-13, Vasant Jayantilal Trivedi, was arrested and was remanded to police custody till 17.8.2000. An amount of Rs.24,000/- representing 48 fake currency notes of Rs.500 denomination was recovered from his residence vide panchnama Ex.168. 3.20. It is further case of the prosecution that A-14, Kalubhai alias Bharat Ratilal Panchal, was arrested on 24.8.2000 and 298 fake currency notes of Rs.500 denomination amounting to Rs.1,49,000 were recovered from his residence by recovery panchnama Ex.169. A-14 had strong links and nexus with A-1 as was clear from the evidence of independent witness P.W.21. CR.A/916/2002 21/104 JUDGMENT 3.21. It is the case of the prosecution that the investigating officer thereafter forwarded samples from the currency notes seized to the FSL for analysis. on receipt of the FSL report indicating that all the currency notes sent for analysis were fake and as incriminating evidence was found against the accused, charge sheet was filed against them for commission of the offences punishable under Section 489B read with Section 120B and Section 489C IPC in the Court of learned Metropolitan Magistrate, Court No.17, Ahmedabad. 3.22. The learned Metropolitan Magistrate committed the case to the City Sessions Court, Ahmedabad, as the charges levelled against the accused persons are exclusively triable by the Court of Sessions. 3.23. On committal, the learned Additional City Sessions Judge, Court No.9, Ahmedabad ('the trial CR.A/916/2002 22/104 JUDGMENT court' for short) to whom the case was made over for trial, framed charge against the accused for commission of the offences punishable under Sections 489B read with Section 120B and Section 489C IPC. The accused persons pleaded not guilty to the charge and claimed to be tried. They were, therefore, put to trial by the trial court in Sessions Case No.387 of 2000. 3.24. In order to bring home the charge levelled against the accused, the prosecution has examined as many as 29 witnesses and relied upon their oral testimonies, the details of which are narrated in paragraph 20 of the impugned judgment and order. They are as under: PW No. Name Status Exh. 1. Kamlesh Vinubhai Patel Panch of Panchnama Ex.105 102 2. Vijaykumar Shrinarayan Sharma Panch of panchnama Ex.153 106 3. Rikin Anilbhai Shah Panch of recovery panchnama Ex.168 107 CR.A/916/2002 23/104 JUDGMENT PW No. Name Status Exh. 4. Dineshpuri Haripuri Goswami Independent witness 108 5. Navinbhai Kalyanjibhai Ghadiali Panch of recovery panchnama Ex.160 110 6. Baldevbhai Ramjibhai Rabari Panch of recovery panchnama Ex.152 111 7. Rameshbhai S. Desai Independent witness – Accountant of Indian Electro Chemicals Limited 112 8. Umesh Keshavlal Solanki Independent witness 114 9. Digambar Narayan Bokade Accountant – State Bank of India, Odhav Branch 116 10. Pradip Champaklal Shah Manager, SBI, Odhav Branch and panch of recovery panchnama Ex.163. 119 11. Liladhar Pitambar Chauhan Panch witness 120 12. Rashmikant Jayantilal Doriwal Employed with Indian Electro Chemicals Limited and panch witness of recovery panchnama Ex.167. 121 13. Bharat Mohanlal Thakore independent witness – serving with M/s. Rupangi Impex. 122 14. Atul Chimanlal Shah Panch witness with regard to recovery panchnama Ex.162 123 15. Baldevbhai Atmaram Patel Independent witness 124 16. Dipeshkumar Kalidas Patel Panch witness 127 CR.A/916/2002 24/104 JUDGMENT PW No. Name Status Exh. 17. Babubhai Painter Kunchan Panch witness of recovery panchnama Ex.161 128 18. Firozmohmed Lekhahmed Saiyed Examined in connection with Maruti Card 129 19. Chetankumar Rameshbhai Patel Panch witness 130 20. Mohmedfaruq Usmangani Mansuri Panch witness 131 21. Ahmed Fakirmohmed Independent witness 133 22. Zahidhussain Punamali Saiyed Independent witness 134 23. Atulbhai Navinchandra Pasawala Panch witness 136 24. Jagdishbhai Kishanlal Soni Brother of Accused No.7. 142 25. Nehalkumar Manubhai Trivedi Panch witness of recovery panchnama Ex.151. 146 26. Krishnakumarsinh Chandrasinh Chudasama Complainant 148 27. Arjunsinh Sabalsinh Rathod Investigating Officer 150 28. Abhaysinh D. Chudasama DCP-ATS – The officer who received the secret information. 155 29. Keshavbharti Pashabharti Swami Investigating Officer 159 3.25. To prove the culpability of the accused, CR.A/916/2002 25/104 JUDGMENT the prosecution has also produced a number of documents and relied upon the contents of the same, the details of which are mentioned in paragraph 21 of the impugned judgment. The relevance of those documents would be discussed hereinafter in this judgment as and when required. 3.26. After recording of the evidence of the prosecution witnesses was over, the trial court explained to the accused the circumstances appearing against them and recorded their further statements under Section 313 of the Code. In their further statements, the accused denied the case of the prosecution in its entirety. They have stated that false case has been filed against them and no fake currency notes were recovered from them. However, they have neither produced any evidence nor did they examine any witness in support of their defence. 3.27. On appreciation, evaluation, analysis and CR.A/916/2002 26/104 JUDGMENT scrutiny of the evidence on record, the trial court has come to the conclusion that the prosecution has established the complicity of all the accused, except A-8, A-9 and A-11, in the racket of fake currency