1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 981 OF 2006 Premal @ Harish Kantilal Kanani Age 35 yrs, Occ : Business, Central Prison of Kolhapur at Kalaba ...Appellant vs. State of Maharashtra, (At the instance of Inspector of Police Airport Station, Mumbai) ...Respondent Mr.Shyam Mehta for the Appellant. Mr.S.R. Shinde, APP for the State. WITH CRIMINAL APPEAL NO. 759 OF 2006 Abdul Rahman Maqbul Ansari, age 58 yrs, of Mumbai, Indian Inhabitant and Residing at 2, A-42, Juhi Narendra Park, Opp.60 s Road Mira Road (East), Dist.Thane, presently serving the Sentence at Arthur Road Jail, Mumbai .....Appellant (Orig.Accused No.3) vs. The State of Maharashtra (through the office of the Public Prosecutor, Appellate Side, Mumbai) ....Respondent (Orig.Complainant) 2 Mr.Samir A. Vaidya for the Appellant. Mr.S.A. Shaikh, APP for the State. CORAM : V.M. KANADE, J. DATED : JUNE 18, 2010 ORAL JUDGMENT :- 1 Both these appellants have challenged the judgment and order passed by the trial court whereby the appellants-original accused no.3 Abdul Rehman Maqbool Ansari and original accused no.4 Premal @ Harish Kantilal Kanani were convicted for the offence punishable under Section 255 of the IPC and were sentenced to RI for 10 years and to pay fine of Rs.1000/- each and in default of payment of fine, they were to undergo SI for one month. They were also convicted for the offence punishable under Section 256 of the IPC and sentenced to suffer RI for 7 years and to pay a fine of Rs.500/- each and in default, to undergo SI for one month. They are also convicted under Sections 257, 259 of the IPC and sentenced to suffer RI for 7 years and a fine of 3 Rs.500/- and in default, to suffer SI for one month on each count. The trial court directed that the sentences should run concurrently. 2 The sentence which accused no.4 had undergone in Criminal Case No.441/2004 awarded by the Judicial Magistrate, First Class, Panvel, for the offence punishable under Sections 467, 468, 471, 474 and 420 read with 34 of the IPC was set off as per the rules for the period for which he was in custody. Brief facts are as under :- 3 The complainant received information that two persons were going to handover counterfeit stamps near Centaur Hotel, Juhu and accordingly, the said information was conveyed to superior officers who in turn asked them to take necessary steps. Accordingly, raiding party was organised and PSI Agarwal and PI Rajesh Dhanawade and other staff reached the entry gate of Centaur Hotel. At about 10.05 a.m., two persons came near the gate of the 4 hotel from different directions and one person by name John Nadar delivered a black colour plastic bag to other person (Chandrashekhar Nadar) and at that time, the raiding party surrounded them. The said two persons tried to escape from the police, however, the police nabbed them. Two panchas were summoned and in their presence they were searched. The first person viz. Chandrashekhar Nadar was found to be in possession of a black colour plastic bag containing Government Share Transfer Stamps. Thereafter, search of the second person John Nadar was taken and the Government stamps of share transfer were also found on his person which were seized. A panchanama of seizure was prepared and they were brought to the Airport police station. A complaint of PSI Dinesh Agarwal was recorded and registered vide C.R.No.2/93 for the offences punishable under Sections 255, 256, 257, 259 read with 114 of the IPC. The investigation was further carried out by PI Rajesh Dhanawade. According to the prosecution, on the same day, Chandrashekhar Nadar 5 gave a voluntary statement in the presence of panchas and he volunteered to show the place and the persons who manufactured the said stamps. Accordingly, he took the police party to room no.6 of the Apsara Guest House. The accused produced a black colour plastic bag which was under the cot under the mattress. The said bag was seized under the panchanama. Thereafter, the said Chandrashekhar Nadar took the raiding party to flat no.7 in a building on the 3rd floor in front of Ramkutir building. The accused no.4 opened the door and accused no.1 Chandrashekhar Nadar identified him as Harish. Accused no.4 also produced a bag which was containing pieces of 150 sheets which was also seized under panchanama. Thereafter, the accused Chandrashekhar Nadar took the police party to building no.7 at Kurla and at that place, accused no.3 Abdul Rehman Maqbool Ansari produced printing material including one plastic cell (Article 6), two offset aluminum plates, one sample proof and one rim of papers. He also pointed out the printing press 6 which was seized on the spot and panchanama at Exhibits 27, 27-A, B and C was concluded at that place. Accused no.3, thereafter, took the police party to the house of accused no.5 Mohamed Sayed Ansari who also removed eight bundles of papers containing 52 stamps sheets which were sized at Articles 7, 7A to 7G. All the accused were arrested. API Dhanawade took the opinion of the expert in respect of the said articles which were seized. The investigation was completed and chargesheet was filed. The accused no.1 Chandrashekhar Nadar died prior to the framing of charges and therefore, the case as against him abated. Accused nos.2 and 5 were absconding and therefore, their trial was separated and accused nos.3 and 4 pleaded not guilty to the said charge. Prosecution examined 11 witnesses and produced material which was seized by them before the trial court. The trial court after going through the evidence on record was pleased to pass the impugned order. 7 4 Shri Mehta, learned Counsel for the appellant- accused no.4 submitted that there was no material on record to show that the appellant was in any way responsible for manufacturing the said stamps. He submitted that therefore, the trial court had erred in convicting the appellant for the offence punishable under Sections 255, 256 and 257 of the IPC. He submitted that even if the prosecution case is accepted, accused no.1 Chandrashekhar Nadar was arrested along with accused no.2. It was accused no.1 who had taken the raiding party to the house of accused no.3 and thereafter, they had taken him to house of accused no.4 i.e. the present appellant in Appeal No.981 of 2006. He submitted that it was accused no.1 Chandrashekhar Nadar who had taken raiding party the house of accused no.3 Abdul Rehman Maqbool Ansari at whose instance, the printing press was seized. He further submitted that there was no material on record to show that the appellant Premal @ Harish was in any way involved with either the manufacture of the said 8 counterfeit stamps or under Section 256 which pertains to possession of any instrument or material which is to be used for the purpose of counterfeit stamp issued by the Government or under Sections 257 and 258 which was of buying and selling counterfeit stamp. It was submitted that at the highest, the appellant could have been held responsible for being in possession of counterfeit Government stamp. He submitted that the maximum punishment for the offence under Section 259 was imprisonment upto seven years. 5 There is much substance in the submission made by the original accused no.4 Premal @ Harish Kanani. After having perused the evidence on record, there is no material to indicate that the appellant was, in any way, concerned with the manufacture or for the sale or for buying the counterfeit stamps. It is an admitted position that Chandrashekhar Nadar, original accused no.1 had taken the raiding party of the police to the house of accused no.3. No 9 material was found in his possession to show that the said material was being used for the purpose of manufacture of those counterfeit stamps. The trial court, therefore, clearly erred in making an observation that the appellant - accused no.4 had material with him for the purpose of manufacturing the said counterfeit stamps. No case, therefore, has been established by the prosecution against this appellant for the offence punishable under Sections 255, 256, 257 and 258 of the IPC. 6 So far as the offence punishable under Section 259 is concerned, from the perusal of the statements of the panch witnesses and the statement of the Investigating Officer, there is ample material on record to indicate that the said stamps were seized under panchanama and the panchas have been examined and though there may be minor contradictions and omissions in their statements, by and large, they have independently proved panchanama to seizure of counterfeit stamps in his possession. 10 Under these circumstances, therefore, the appeal filed by appellant - original accused no.4 is partly allowed. The appellant is acquitted for the offences punishable under Sections 255, 256, 257 of the IPC. The conviction of the appellant, however, for the offence punishable under Section 259 is confirmed. The sentence, however, imposed by the trial court of 7 years for the said offence is reduced to the sentence which the appellant has already undergone and the appellant, therefore, is directed to be released forthwith unless he is required in any other case. 7 So far as the appellant - original accused no.3 Abdul Rehman Maqbool Ansari is concerned, Shri Vaidya, learned Counsel for the appellant strenuously urged that the prosecution had failed to prove the ingredients for the offences punishable under the provisions of Sections 255, 259. He also submitted that the recovery panchanama dated 2nd January, 1993 and 5th January, 1993 also was not 11 proved by the prosecution. It was then submitted that though the printing press was seized by the police, there was no material to indicate that the appellant had manufactured those stamps which were found in his possession in the same printing press which was seized and which was shown by him to the raiding party. It was then submitted that the appellant Ansari was handcuffed in the police station and as such, the recovery from him in respect of the two offset aluminum plates, one plastic cell could not be said to be recovered under seizure panchanama since he was handcuffed. Therefore, the said disclosure could not be deemed to be a voluntary disclosure. It was then submitted that there were several discrepancies in the statement of panch witnesses and also the Investigating Officers and the appellant was entitled to get benefit of doubt. It was then submitted that PW 2 panch witness had admitted in his cross-examination that accused John Nadar was arrested on 2nd January, 1993 at the appellants 12 printing press at Kurla and on the other hand, complainant PSI Agarwal had stated in his deposition that accused John Nadar was arrested outside Centaur Hotel. It was further submitted that one of the witnesses examined by the prosecution had stated that the appellant Abdul Rehman Maqbool Ansari was the person who had printed the counterfeit stamps. It was submitted that the material recovered from the other co-accused is the same material recovered from the appellants printing press. He, therefore, submitted that the offence under Sections 255, 256 and 257 could not be sustained against him. It was further submitted that there was a discrepancy in the statements of the two panch witnesses. It was submitted that on the one hand, PW 10 who was second panch witness had stated in his deposition that he had never acted as a panch and on the other hand, PW 2 i.e. the first panch witness Shetty had stated in his evidence that PW 2 was present at the time when seizure panchanama was drawn. It was submitted that this was a major discrepancy in the statements of 13 the two witnesses and therefore, it was urged that the said evidence of these panch witnesses should be discarded by the court. It was then contended that mere possession of the counterfeit stamps was not sufficient for framing a charge under Section 259 of the IPC. It was then contended that the delay in registering the FIR had not been explained and secondly, the complainant - PW 1 whose statement was recorded in the FIR was himself police officer which was not permissible in law. It was contended that the independent panch witness was not examined and in the absence of such a witness, an evidence in respect of the seizure became doubtful and therefore, the entire trial was vitiated and as such, the appellants were entitled to be acquitted on this ground. He further submitted that PW 11 who was the Investigating Officer had in his cross- examination admitted that he had not verified that the recovery articles were printed on the same machine which was seized. It was further contended that the counterfeit stamps were not kept in a 14 sealed condition and they were lying at the Airport police station by the Investigating Officer for two months before it was dispatched to Indian Security Press at Nashik for the opinion of the forensic expert. It was then submitted that the complainant PW 1 had admitted in his cross-examination that he had interrogated accused who were interrogated by him and thereafter, an FIR was registered. It was submitted that therefore, the said FIR could not be treated as FIR but could be treated mainly under Section 162 and as such, no reliance could be placed on him. The learned Counsel also comments upon the evidence of PW6, 7 and 10. In support of the submissions, he relied on the judgment of the Apex Court in the case of State vs. Nalini, (1999) 5 SCC Page 253 and (2005) 11 SCC in the case of Navjyot Sandhu vs. State of NCT, Delhi and judgment in the case of Saheb Singh vs. State of Punjab 1996 (11) SCC 685 and the judgment of the Apex Court in 1994 Criminal Law Journal 3602 (Bom) and lastly, on judgment in the case of Shankar Raju Banglorkar vs. 15 State of Goa 1992, Criminal Law Journal 3034 and the judgment in the case of Ashraf Hussain Shah vs. State of Maharashtra, 1996 Criminal Law Journal 3147. 8 The learned APP, on the other hand, vehemently opposed these submissions. He invited my attention to the evidence of the witnesses recorded by the prosecution and also the judgment of the trial court. 9 After having heard the counsel for the appellant - Abdul Rehman Maqbool Ansari, the submissions made by the said learned Counsel, in my view, cannot be sustained. So far the first submission is concerned regarding the recovery of the articles from the printing press is concerned, his contention that the accused Abdul Rehman Maqbool Ansari was handcuffed at the police station and therefore, the said recovery at his instance was not admissible, more particularly, on the ground that he 16 was under duress and therefore, the said statement on recovery cannot be accepted. During the course of cross-examination of the witness, the witness has stated that the appellant Abdul was handcuffed when he was in the police station. The submission of the learned Counsel for the appellant that the entire seizure of articles at the instance of accused no.4 has to be discarded since he was handcuffed during the entire process of recovery also cannot be accepted. Firstly, the said witness does not admit that he was handcuffed when he was in the printing press. Secondly, merely because the appellant was handcuffed in the police station would not mean that he was under duress. It is the duty of the police to ensure that the accused does not abscond and therefore, handcuffing of the accused when he was in their custody or he has brought from the lock up to the police station is permissible. What has to be seen is whether he was taken in the same condition to the place where recovery has been made, in my view, the evidence on record does not 17 indicate that he was handcuffed while he had shown material viz. the counterfeit stamps and the material in the printing press. Under these circumstances, there is no substance in the submission made by the appellant. The second submission which was made by the learned Counsel for the appellant was regarding the discrepancy in the statements of two panch witnesses. In my view, the discrepancy as alleged by the learned Counsel at the most can be considered as minor discrepancy. In my view, there is no material contradiction in the statement of these witnesses. Therefore, the minor contradiction will have to be overlooked, if the court comes to the conclusion that they have corroborated each others testimony on the major aspect of recovery. The third submission made by the Counsel for the appellant that the appellant could not be held guilty for the offence under Section 255 merely because the printing press was recovered and seized at his instance. The submission of the appellant that it was necessary for the prosecution 18 to prove that the counterfeit stamps were actually manufactured on the same machine and in the absence of any such material, he was liable to be acquitted on that ground, also cannot be accepted. In the present case, the prosecution has examined the necessary witnesses and the chain of events has been successfully proved by the prosecution. The prosecution has proved that information was received by the police about two persons dealing in counterfeit stamps and accordingly, a trap was led, panchas were summoned and they were caught red- handed near the gate of the Centaur Hotel at Juhu Airport. Thereafter, accused no.1 Chandrashekhar Nadar had taken the police party to accused nos.3, 4 and 5 and there also, the counterfeit stamps were recovered at the instance of the said accused and finally, the appellant Abdul Rehman Maqbool Ansari showed the place where counterfeit stamps were printed. It is pertinent to note that the very same material which was found in possession of the other accused was also found in the same room where the 19 printing press was kept. The chain of events, therefore, is complete and in my view, the trial court was justified in coming to the conclusion that the appellant had printed the counterfeit Government stamps in the said press. Thus, there is no substance in the submission of the appellant. In my view, the charges have been established and therefore, finding of conviction recorded by the trial court is confirmed. So far as the question of sentence is concerned, the appellant is in jail since 9th August, 2006 and total period undergone by him would be four years. The sentence awarded to the appellant, therefore, in my view, needs to be reduced to six years instead of 10 years. The trial court has awarded the maximum sentence to the appellant for the offence under Section 255 which is in my view, excessive. The sentence, therefore, is reduced from 10 years to 6 years. The conviction is confirmed. The appeal, therefore, is partly allowed. 10 Both the appeals are disposed of. (V.M. KANADE, J.)