1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT (1) LIYAKAT ALI VS. STATE OF RAJ. (S.B.Criminal Appeal No. 1199 of 2005) (2) MEHBOOB ALI & ANR. VS. STATE OF RAJ. (S.B.Criminal Appeal No. 39 of 2006) (3) ANJU ALI & ANR. VS. STATE OF RAJ. (S.B.Criminal Appeal No. 40 of 2006) (4) PURAN MAL SAINI VS. STATE OF RAJ. (S.B.Criminal Appeal No. 54 of 2006) Under Section 374 Cr.P.C. against the judgment dated December 17, 2005 of Special Court (Fake Currency Cases), Jaipur in Sessions Case No. 31 of 2004 accused appellants Pooranmal, Anju Ali, and Majhar were convicted and sentenced for offence under sections 489 C for 3 Years RI, for Section 489 B read with section 120 B IPC five Years RI, and fine of Rs. 1,000 each, in default to further undergo one month SI. Accused appellants Firoz and Mehboob were convicted and sentenced under sections 489 B read with section 120 B IPC for Five Years RI and fine of Rs. 1000/-, in default to suffer one month SI. Accused appellant Liyakat Ali was convicted and sentenced under section 489A IPC for 10 Years RI, fine of Rs. 1,000/-, in default to suffer one month SI, under Section 489 B read with section 120 B IPC five Years RI, and fine of Rs. 1,000/- each, in default to further undergo one month SI, under section 489 C for 3 Years RI, under section 489 D IPC for 10 Years RI and fine of Rs. 1,000, in default one month SI. Date of Order : May 28 , 2009 2 PRESENT HON’BLE MR. JUSTICE MAHESH CHANDRA SHARMA REPORTABLE Mr. S.S.Hora for the appellants Anju Ali, Mazhar and Liyakat Ali. Mr. A.K.Gupta for the for the appellants Mehboob Ali and Mohd. Firoz Mr. Vinay Pal Yadav for the appellant Puranmal Saini. Mr. Pradeep Shrimal, Public Prosecutor for the State. BY THE COURT : These four appeals have been filed by the appellants Liyakat Ali, Mehboob Ali, Mohd. Firoz, Anju Ali, Mazhar, and Pooranmal Saini against the judgment dated December 17, 2005 of Special Court (Fake Currency Cases), Jaipur in Sessions Case No. 31 of 2004 whereby the accused appellants Pooranmal, Anju Ali, and Majhar were convicted and sentenced for offence under sections 489 C for 3 Years RI, for Section 489 B read with section 120 B IPC five Years RI, and fine of Rs. 1,000 each . In default to further undergo one month SI. Accused appellants Firoz and Mehboob were convicted and sentenced under sections 489 B read with section 120 B IPC for Five Years RI and fine of Rs. 1000/-, in default to suffer one month SI. Accused appellant Liyakat Ali was convicted and sentenced under section 489A IPC for 10 Years RI 3 and fine of Rs. 1,000, in default to suffer one month SI, under section 489 B read with section 120 B IPC five Years RI, and fine of Rs. 1,000 each, in default to further undergo one month SI, under section 489 C for 3 Years RI, and under section 489 D IPC for 10 Years RI and fine of Rs. 1,000, in default one month SI. The appellants Anju Ali and Majhar's sentence was suspended by this court on January 12, 2006. The sentence of Pooranmal, appellant was suspended on January 17, 2006. The sentence of Mehboob Ali and Mohd. Firoz was suspended by this court on Feb. 1, 2006. Except appellant Liyakat Ali, all appellants are on bail. 2. Brief facts of the case are that on January 6, 2004 one Ajit Singh ASI, lodged a written report at Police Station Ramganj, Jaipur to the effect that on that day one Purshottam FC No. 4426 was sent to Jaipur City for searching Pooranmal in case No. 459 of 2003. He was instructed to inform after search about this accused. Purshottam FC informed over telephone that accused Pooranmal is walking in Sanjay Bajar, Ghatgate and he is watching him. On this information ASI Ajit Singh alongwith FC Jai 4 Singh No. 6290, driver Hanuman and one Mahavir Singh ASI went in a Government vehicle Gypsy at Sanjay Bajar where FC Purshottam was found present who informed by indication to ASI Ajit Singh that the person standing ahead the wine shop and wearing black jacket, is Pooran Mal Saini. On this the complainant ASI alongwith his companions reached near that person and asked his name. He told his name to be Pooranmal Saini son of Ramniwas aged 33 yeas, by caste Mali R/o Jeevram Ki Dhani, Gudhana Police Station Bagad District Jhunjhunu at present C-5 Bhagirath Colony Police Station Vidhayakpuri, Jaipur. He was interrogated in FIR No. 459 of 2003 for offence under sections 420 and 406 IPC. On searching him, one mobile phone, telephone diary, PAN Card and Rs. 500 were found with him. On checking 5 currency notes, 3 currency notes were having No. 3HN4086`2 and 2 currency notes were having No. 9 ST 580755. On suspicion these currency notes were thoroughly checked then 3 currency notes were found having similar number of one series and 2 notes were found having similar number of one series. Reserve Bank of India never issued notes having similar number in one series, therefore the currency notes were found to be fake. On 5 enquiry about these currency notes from accused Pooranmal then he accepted the same to be fake. The notes were seized by the Police for verification. On receipt of above report a case FIR No. 14 of 2004 for offence under sections 489 C and 120 B IPC was registered and investigation commenced. During investigation on enquiry, Pooranmal informed that he received the forged currency notes from Mehboob, Firoz and Ramgopal. On the information of Pooranmal, Mehboob and Firoz were arrested. On the information furnished by Pooranmal Rs. 41,900 forged currecncy notes were seized. Mehboob and Firoz informed that they received the forged notes from one Anju Ali. Anju Ali was also arrested and on his information Rs. 1,75,000 were recovered. On enquiry from Anju Ali he informed that he was receiving fake currency notes from Majhar. Majhar was arrested and on his information fake currency notes of Rs. 48,220 were recovered from his possession. Majhar told that he was receiving forged currency notes from Liyakat Ali. It was alleged that Liyakat Ali was arrested from his business place at Delhi and fake currency notes of Rs. 2,39, 500/- were recovered from him along with some equipments. After completing the 6 investigation, the police filed challan against the accused appellants and one Ramgopal. Charges were framed against appellants Poornmal, Firoz, Mehboob, Anju Ali, Majhar and Ramgopal for offences under sections sections 489 B read with section 120 B IPC, 489 C read with section 120 B IPC and against accused Liyakat Ali for offence under sections 489A, 489 B read with section 120 B IPC, section 489 C and section 489 D IPC. The accused appellants denied the charges and claimed to be tried. The prosecution examined 28 witnesses and got exhibited some documents thereafter examined accused appellants under section 313 Cr.P.C. In defence three witnesses were examined and got exhibited five documents. After hearing both the sides the learned trial court convicted and sentenced the accused appellants as indicated above vide judgment dated December 17, 2005. Against this judgment of the trial court the appellants have filed these four appeals for quashing the judgment of conviction and sentence. 3. M. S.S. Hora, learned counsel for the appellants Anju Ali, Majhar and Liyakat Ali, submitted following submissions: 7 Sections 489A, 489 B, 489 C and 489 D are not applicable and only section 489 E can at most be applied. Section 489 E provides that whoever makes, or causes to be made or uses for any purpose whatsoever, or delivers to any person, any document purporting to be, or in any way resembling or so nearly resembling as to be calculated to deceive any currency note or bank note shall be punished with fine which may extend to one hundred rupees. The learned counsel raised the argument about the non sealing and no safety of seized currency notes. The currency notes were not capable of being used as such and were more in the nature of fancy notes. The learned counsel argued that the compliance of section 100(4) Cr.P.C. was not made in the instant case, which is fatal to prosecution case as set out in 1993(1) Crimes 1055 Ran Singh vs., State of Haryana, 1996 Cr.L.R. (Raj.) 389 State of Rajasthan vs. J. Nagpal, 1987 Cr.L.J. 1539 Prem Lata vs. State of 8 H.P. Makes accused entitled to benefit of doubt. The recovery shown from Delhi from accused persons is highly doubtful due to inconsistencies in evidence. The learned counsel submitted that it is a case of false implication of the accused by investigating officer. The accused made suggestions that the currency notes were in fact photocopied by the police party itself to falsely implicate the accused. The learned counsel submitted that the report received from Nasik was not mentioning number of seized currency notes. It is not possible to draw inference of forgery of currency notes as held in State of Raj. vs. Rajendra 1999 WLC UC 741 where also accused was acquitted. The learned counsel stated that there was no intention of the accused to use genuine counterfeit currency notes. The prosecution has not produced a single witness to state that the accused persons used or intended to use these currency notes. Intention to use the currency 9 notes as genuine constitutes the mens ria of the offence and is an essential ingredient which is not satisfied in the instant case. The learned counsel stated that no offence under section 489 B and 489 C is made out. He relied upon Karunakaran Nadar vs. State 2000 Cr.L.J. 3748 and Uma Shakar vs. State of Chhatisgarh AIR 2001 SC 3074. The learned counsel prayed for acquittal of the accused or in the alternative all the appellants have completed about half of their sentence and they may be released on sentence already undergone by them. 4. Mr. A.K. Gupta, learned counsel for the appellants Mehboob Ali and Mohd. Firoz and Mr. Vinay Pal Yadav, learned counsel for the appellant Puranmal Saini reiterated the arguments of Mr. S.S. Hora and further stated that the appellants are in judicial custody and they have completed about half of their sentence and they may be released on sentence already undergone by them. 5. On the other hand Mr. Pradeep Shrimal, learned Public Prosecutor submitted following written submissions: 10 The recovered notes from different accused were sent in sealed condition to the Reserve Bank of India, Jaipur Branch. Shyam Singh was examined in this respect as PW-16 and stated that Raman Bhardwaj, ASI sent 1004 notes of different denominations. He in consultation with the officers of the faked notes detection wing of the Bank came to conclusion that all the notes were counterfeit. He sent the report which has been marked as Ex. P-34. These notes were also sent to Indian Security Press, Nasik. They also found the notes as counterfeit and sent the report. The notes bear the seal of the Indian Security Press, Nasik showing that they have been thoroughly examined. The reports are Exhibit P. 46, 47, 48 and 51. Under the provisions of Section 292 Cr.P.C such reports are admissible and conclusive without examination of the officers of the Indian Security Press, Nasik. The report of the Nasik press as well as the report of the Officer of Reserve Bank given the number of the notes examined. These numbers were compared with the entries in the Malkhana register and they were found to be correct. Mr. Shyam Singh has made a similar statement. The trial Court considering the statement of Shri 11 Shyam Singh as well as other proved circumstances rightly came to the conclusion that the notes recovered from the accused persons were counterfeit and fake. Thereafter he thoroughly discussed and examined the evidence relating to each accused and found each of them guilty and sentenced each of them as mentioned above. Regarding Appeal No. 54/2006 of Puran Mal, learned counsel appearing for the accused, apart from the general objections stated that the prosecution witnesses PW-7 Nanak Ram and PW-8 Indra Kumar who are the witnesses of the recovery of the fake notes have been declared hostile and they have not supported the recovery as such it should be considered that he has been falsely implicated. The learned trial court in its judgment discussed the evidence on these points in detail. He observed that Ajit Singh, ASI arrested the accused Pooran Mal vide Exhibit P-6 at the time of search of his person. Mobile, telephone diary, pan card and 5 notes of Rs. 100/- each were recovered. All the three notes were found of the same number HN 408612 and two notes were found of No. AT 12 580755. The very fact that the notes were bearing the same number clearly proved that they were forged and counterfeit. Union Government does not issue notes of same number each note bears separate number. Beside that counterfeit notes of Rs. 41,900 were recovered. The statement of Ajit Singh stand supported by the statement of Purshottam PW-5 as well as Mahavir Singh. As regards the attesting witnesses of the recovery memo and their turning hostile, the trial court observed that after seeing the counterfeit notes the witnesses signed the recovery memos. They atleast proved that in Sanjay Bazar, Police took some steps and the learned Trial Court believed the recovery. Besides that the accused Pooran Mal Saini informed the Investigating Officer Raghuveer Singh PW-26 that he wants to get the counterfeit notes of 42,000/- recovered from the drawer of the table of his office situated at Swastik Cargo, Ward C-5, Bhagirath Colony, Chomu House. The information was recorded and the same has been produced and marked Exhibit- 39. This information bears the signature of Investigating Officer. In pursuance to this information notes of 41,900/- were recovered 13 from the drawer of the table of the accused from the office as noted above. The tress map prepared by the police of the recovery is Exhibit-P3. All the notes as indicated in Exhibit-39 were recovered. The attesting witness of the recovery memo is PW-6 Sushil Kumar Agarwal, who stated that these notes were recovered from the place where Pooran Mal lives and he also supported the recovery memo. On the side of the accused it was urged that a litigation is going on against Pooran Mal and brother of the witness. The learned trial Court set aside this argument and believed the statement of the witness stating that actual recovery has been made and it is not as a imaginary statement. The other witness Rambabu PW-9 also supported and stated that in his presence, counterfeit notes recovered from the presence of accused. Besides that Shri A.B. Mathur PW-10 was also examined to prove that the place from which the counterfeit notes were recovered was in possession of the accused and he was his tenant. On the basis of above evidence and the statement of other witnesses, the trial Court held that counterfeit notes of 41,900/- described in the recovery memo were recovered in consequential information given by 14 Pooran Mal. This fact stands proved beyond reasonable doubt. Against this learned Counsel for the accused has stated that recovery from the possession of the accused has not been proved, as the attesting witnesses has been declared hostile and they have not supported the prosecution case. In support of his contention, he has cited the case of State of Rajasthan Vs. M/s J. Nagpal & Ors., 1996 Cr. Law Reporter (Raj.) 389. Smt. Prem Lata Vs. State of Himachal Pradesh 1987 Cr. Law Journal 1539 as well as Ram Lakhan Singh & Ors. Vs. The State of Uttar Pradesh AIR 1977 SC 1936. At the outset it would be worthwhile to note here that Section 100 Cr.PC does not apply to search of a person at the time of arrest AIR 1956 SC 411. It is submitted that none of the cases cited by the defence counsel apply to the facts of the present case. The decision in State of Rajasthan Vs. Jagpal is a decision on the peculiar facts of that case. Two Supreme Court cases were cited before the Hon’ble Single Bench in that case in which the statement of attesting witness were not given any importance and it was not considered that 15 they are mandatory witnesses. The learned judge distinguished those cases of the Supreme Court on the ground that decision in those cases were given under the Customs Act and related to keeping of smuggled gold whereas, the case before the learned judge was relating to trade articles (Licensing and Control Order) in that case the Hon’ble Judge observed those were cases relating to smuggling of goods, here the case relates to violation of Clause 30 (2) of the Rajasthan Trade Article (Licensing and Control Order) 1980. He further observed that the explanation given by the dealer that the stock position as well as the price had been displayed on the notice board on 31st March. Thus that case was mainly decided on the ground of plea raised by the stock holder, as such the decision is distinguishable. In the case of Prem Lata it was held that independent and respectful witnesses were easily available in the locality and no effort was made by the officer to call such witnesses and as such there was non compliance of Section 100 (4) Cr. PC. But in the case on hand at the time of search two independent witnesses were kept, but later on they turned turtle. As regards recovery of 16 counterfeit note of 41,900/- the attesting witnesses supported the prosecution, as such this case is also distinguishable. In the case of Ram Lakhan Singh the Hon’ble Court held that non examination of neighboring independent witnesses and examination only of certain inmates of house, who were inimical to the accused, creates a doubt. In the case on hand none of the witnesses were inimical to the accused. Thus, it can be safely held that 5 forged/counterfeit notes of 100/- each were recovered from the person of the accused and forged counterfeit notes of 41,900/- were recovered in consequence information given by the accused from the place viz the drawer of the table of the office of the accused and the premises was on rent with the accused. Thus, the recovery stands proved against the accused Pooran Mal beyond any shadow of doubt. The Investigating Officer Raghuveer Singh PW- 26 stated that the accused Mahaboob and Firoz, who were under arrest informed that the counterfeit forged notes were given to them by Usman Bhai and Anju Ali and they were ready to identify Usman Bhai and Anju Ali. This information was recorded, which bears the 17 signatures of Investigating Officer. On the basis of this information, both the accused Mahaboob and Firoz identified Anju ali, who was found sitting in the Maruti Car no. DL-3C- V-2927 in street no. 13 Seelpur, Delhi was arrested and Exhibit-16 was prepared, which bears the signatures of Mahaboob, Firoz and Investigating Officer Raghuveer Singh. Two independent attesting witnesses Mukesh Yadav, PW-13 and Vinod Sharma, PW-11 also signed the same. PW-24 Mahaveer, who was also present with the Investigating Officer also supported the prosecution case. As regards Mahaveer, the learned Counsel for the accused raised the objection that his statement was not recorded regarding Anju Ali. As such his statements should not be relied upon. In support of his contention he cited the case AIR 1977 SC 1936 Ram Lakhan V/s State and Ors. This case does not help the accused, because it is totally distinguishable. In that case the witness was not regarding any recovery memo. Moreover the Hon’ble court in that case held that the witness was inimical to the accused. The name of the witness was not mentioned in the charge sheet and the witness was not examined by the Police u/s 161 Cr. PC. Whereas in the case in 18 hand, the name of the witness appeared in the charge sheet. He was also examined partially. Apart from that, the independent witnesses have supported the recovery. Moreover in 1986 CRI. L.J. 2011 Md. Yusuf’s, the Madras High Court in the case of counterfeit currency notes has held that the evidence of the Investigating Officer need not necessarily be corroborated. From Anju Ali counterfeits notes of 1,75,000/- were recovered. Recovery memo Exhibit-P2 and the arrest memo is Exhibit-P30. Anju Ali informed the Police the currency notes have been given him by Majhar. The information was recorded as Exhibit-P43. In pursuance to that Majhar was identified and from his possession counterfeit note of 42,220/- were recovered. The arrest memo is P-31. The site plan which shows recovery is Exhibit-P37. Information given by Majhar is Exhibit-P44. Majhar informed the Police that he used received counterfeit notes from Liyakat Ali, who has a shop at Bhagirath Palace and he was ready to identify the shop as well as Liyakat Ali. This information was recorded as Exhibit-P20. 19 The police went to the shop of Liyakat Ali and from the shop half prepared currency notes and fully prepared currency notes were so recovered. The implements for manufacturing the notes were also recovered. Liyakat Ali has given the information expressing his desire to get the fake counterfeit notes recovered. In consequence of the information notes of 2,39,500/- as well as for 2,00,000/- were recovered at the instance of accused Liyakat Ali. On the basis of the above evidence the learned trial court held all the accused guilty of the charges framed against them and sentenced them as mentioned above. The Public Prosecutor stressed that such types of heinous offences the accused appellants should serve the full sentence imposed upon them without getting any remission as is held by the Apex Court in the case of Swami Sradhananad vs. State of Karnataka (Criminal Appeal No. 454 of 2006) decided on July 22, 2008. By raising the above arguments, the Public Prosecutor submitted that the appeals filed by the accused be dismissed. The intelligence 20 investigations carried on by Ajit Singh and Raghuveer Singh unearth a gang dealing in counterfeits notes, adversely affecting the economy of our country. 6. I have heard the learned counsel for the parties and gone through the entire record. 7. Before proceeding further a brief of the evidence produced by the prosecution is necessary. PW.1 Rohitash, Constable No. 638 in his statement stated that Ex. P.1 is arrest memo bears his signatue A to B and C to D of Pooranmal. From his residence Rs. 42,000 were recovered and seizure memo Ex. P.2 was prepared on which A to B were his signatures and G to H is signatures of Sushil and E to F is signatures of Ram Bahadur. The currency notes were sent to India Security Press Naskik for examination whether they were fake or not. Ex.P.3 Naksha Moka and Ex. P.4 arrest Memo of accused Firoz and Ex. P.5 is arrest memo of accused Mehboob. His signatures A to B on both these documents are of him and accused Mehboob signed C to D and accused Firoz signed at Ex. P.5. PW.2 Jai Singh Constable No. 6290 stated that Purshotam, constable was sent in search of 21 accused Pooranmal in another case. Whereupon Purshotam informed over telephone that Pooranmal is walking in Sanajy Bazar area. ASI Ajit Singh and SI Mahaveer arrested Pooranmal Saini and from him five fake currency notes of Rs. 100/- were recovered. PW.3 Ajitsingh stated in his statement that as per the information of Purshotam, accused Pooranmal Saini was arrested vide Ex. P.6. Over which he signed A to B. C to D are signatures of Pooranmal. From his possession one mobile, one