1 JUDGMENT - CRI.APPEAL NO.993-2008.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.993 OF 2008 Mohammed Razaul Bonji Shaikh ..Appellant Vs The State of Maharashtra ..Respondents WITH CRIMINAL APPEAL NO.1223 OF 2008 Akmal Shahjahan Momin ..Appellant Vs The State of Maharashtra ..Respondents -- Mr.Shyam Mehta, for appellant in Cri. Appeal No.1223 of 2008. Mr.A.N.Kotangale, for appellant in Cri. Appeal No.993 of 2008. Mr.Y.P.Yagnik, APP for respondent State in both appeals. -- CORAM : R.G.KETKAR, J. RESERVED ON : 30 th JUNE, 2011 PRONOUNCED ON : 15 th JULY, 2011 JUDGMENT: Criminal Appeal No.993 of 2008 is preferred by Mohdammed Razaul Bonji Shaikh, original accused no.2 (hereinafter referred as 2 JUDGMENT - CRI.APPEAL NO.993-2008.odt “accused no.2”) and Criminal Appeal No.1223 of 2008 is preferred by Akmal Shahjahan Momin, original accused no.1 (hereinafter referred as “accused no.1”) challenging the judgment and order dated 19th June, 2008 passed by the learned Addl. Sessions Judge, Dindoshi, Borivali Division, Greater Mumbai in Sessions Case No.21 of 2007. By that order, the learned Addl. Sessions Judge held accused nos.1 and 2 guilty for offence punishable under Section 489-B as well as 489-C read with 34 Indian Penal Code, 1860 (for short "IPC") and sentenced both the accused to suffer rigorous imprisonment for 7 years each on each count and to pay fine of Rs.10,000/- each on each count, in default, to undergo further rigorous imprisonment for 6 months. The learned Sessions Judge directed that the substantive sentences shall run concurrently and further directed that since both the accused are in jail since 30th July, 2007, benefit of set off under Section 428 of the Code of Criminal Procedure, 1974 (for short “Cr.P.C.”) shall be given to them. He further ordered that muddemal articles 2 and 3 i.e.fake currency 366 notes each of Rs.500/- denomination shall be transmitted to the Mint through the Commissioner of Police, Mumbai after appeal period is over for disposal according to law. 2] Accused nos.1 and 2 stand charged for the offence punishable under Sections 489-B, 489-C read with 34 IPC on the allegations that on 30th July, 2007 at about 11:40 am, in front of Rajdeep Hardware, 3 JUDGMENT - CRI.APPEAL NO.993-2008.odt Bazar Galli, Gate No.5, Malwani, Malad (W), Mumbai, in furtherance of their common intention, had trafficked in forged Government currency notes of Rs.500/- each. 266 forged currency notes were found in possession of accused no.1 and 100 forged Government currency notes were found in possession of accused no.2, knowingly same to be forged and/or counterfeit intending to use the same as genuine or that it may be used as genuine. 3] The case of the prosecution is that on 30th July, 2007, Mr.Hargude, Senior Police Inspector of Malvani Police Station had received information that two persons with fake currency notes would be visiting Bazar Galli near Gate no.5, Malwani, Malad (West), Mumbai. He, therefore, called PSI Sadashiv Sawant (PW 7), API Raorane and Head Constable Adam Shaikh (PW 1) to arrange trap. PW 7 Sawant asked PW 1 Adam Shaikh to call two panchas. Accordingly, PW 1 Adam Shaikh brought Sohel Rizvi (PW 6) and one Fahim Jafari. Two teams were formed. One of the teams was headed by API Raorane and the other team was headed by PW 7 Sawant. The raiding party reached the spot at Bazar Galli at 11 am. One team had taken position near Rajdeep Hardware and other team had taken position near Maharashtra Hotel at a distance of 20 to 25 steps ahead of Rajdeep Hardware. 4] At 11.40 am the raiding party noticed two persons in Bazar 4 JUDGMENT - CRI.APPEAL NO.993-2008.odt Galli as pointed by the informer. PW 1 Adam Shaikh pointed these persons to the team of Raorane. When the two persons who were accused before the Court came near, both the teams nabbed the accused in presence of panchas. They took personal search of accused nos.1 and 2 on the spot one by one. In so far as accused no.1 Akmal is concerned, he was found possessing three bundles of currency notes of Rs.500/- each. Out of three bundles, two bundles each were containing 90 currency notes and one bundle was containing 86 currency notes of same denomination. Thus, as far as accused no.1 Akmal is concerned, he was found in possession of 266 currency notes of Rs.500/- each. As far as accused no.2 Mohd. Razaul is concerned, he was found in possession of one bundle containing 100/- currency notes of Rs.500/- each. 5] The currency notes were examined in the presence of panch witnesses and it was found that those currency notes were not having water mark. The security thread was also faded one and where the currency note is rubbed by hands then the fingers were being smeared with colours. All those currency notes were rapped in three plastic bags and were sealed. Labels were put on the bags and were signed by the panchas. The currency notes were seized by drawing panchnama in presence of panchas on the spot. Both the accused were arrested and further investigation was carried out by PW 7 Sawant. The Expert's opinion was sought from the Government 5 JUDGMENT - CRI.APPEAL NO.993-2008.odt Currency Press, Nashik and after completion of investigation, Charge Sheet was filed against both the accused. Since accused are exclusively triable by the learned Sessions Judge, the learned Addl. Chief Metropolitan Magistrate, Borivali committed the case to the Court of Sessions. Charge was framed at exhibit 2 and the same was read over and explained to the accused persons. Both the accused pleaded not guilty and claimed to be tried. The defence of the accused is of total denial. 6] In order to substantiate the Charge, the prosecution examined in all seven witnesses namely Head Constable Adam Rasool Shaikh (PW 1) at exhibit 8. Police Constable Mahesh Gawde examined as PW 2 at exhibit 14, was one of the members of raiding party. Panch witness Sadaf Ali was examined as PW 3 at exhibit 15. He acted as a panch for house search panchnama at exhibit 16. Head Constable Balasaheb Bhor was examined as PW 4 at exhibit 19, who carried the seized packet of currency notes to Nasik Currency Notes Press, Nasik. Head Constable Mahendra Gholap was examined as PW 5 at exhibit 22, who collected the Expert’s opinion report from Nasik Currency Press. Expert’s opinion is at exhibit 25. Sohel Ajgar was examined as PW 6 at exhibit 26. He acted as panch to the seizer panchnama exhibit 27. Lastly, PSI Sadashiv Sawant was examined as PW 7 at exhibit 29, who carried out the investigation. No witness in defence was examined. 6 JUDGMENT - CRI.APPEAL NO.993-2008.odt 7] As indicated earlier, by the impugned judgment and order, the learned Sessions Judge has convicted both the accused for the offence punishable under Sections 489-B and 489-C read with 34 IPC and sentenced to suffer rigorous imprisonment for seven years each on each count and to pay fine of Rs.10,000/- each on each count, in default to under further rigorous imprisonment for six months. 8] I have heard Mr.Shyam Mehta, learned counsel for the appellant (original accused no.1) in Criminal Appeal No.1223 of 2008, Mr.A.N.Kotangale, learned counsel for the appellant (original accused no.2) in Criminal Appeal No.993 of 2008 and Mr.Y.P.Yagnik, learned APP for respondent State in both the Appeals. 9] Mr.Mehta submitted that the prosecution has not at all made out case under Section 489-B IPC. He submitted that in order to constitute offence under Section 489-B IPC, the prosecution has to establish that the accused sold to / or bought or received from some person or trafficked in or used as genuine, such currency note or bank note. Prosecution has to further establish that when he did so, he knew or had reason to believe that it was forged or counterfeit. In the instant case, the accused are charged for trafficking forged Government currency notes. However, the evidence on record does 7 JUDGMENT - CRI.APPEAL NO.993-2008.odt not to substantiate that the accused had trafficked in any forged Government currency notes. 10] In so far as offence punishable under Section 489-C IPC is concerned, he submitted that the mere possession of forged or counterfeit notes or bank note is not sufficient and the prosecution has to establish that the accused knew or had reason to believe the currency notes to be counterfeit and the accused intended to use it as genuine or it might be used as genuine. Onus lies on the prosecution to prove the circumstances which lead clearly, indubitably and irresistibly to the inference that the accused had intention to foist the notes on the public. He further submitted that there is no independent evidence and the statement made by the accused to the police cannot be considered as confession. In support of these submissions, he invited my attention to the evidence on record as also the judgment of the Apex Court and High Courts. Mr.Kotangale, learned counsel adopted the arguments of Mr.Mehta. 11] Mr.Yagnik, learned APP supported the impugned judgment. He submitted that the evidence of the prosecution witnesses establishes the guilt of the accused beyond reasonable doubt. He submitted that the offence alleged against the accused is of a serious nature and therefore, it has to be dealt with by firm hands. The prosecution has proved by leading sufficient and cogent evidence 8 JUDGMENT - CRI.APPEAL NO.993-2008.odt that the accused received the currency notes from one Kayyum and were trafficking in counterfeit currency notes. From the material on record, he submitted that it cannot be disputed by the accused that the notes were found in possession of the accused and that they were counterfeit. The question of knowledge or intention has to be gathered having regard to the number of currency notes found in possession of the accused. No explaination is given by the accused during their statements under Section 313 of Cr.P.C. He, therefore, submitted that the prosecution evidence has proved that the accused had knowledge or reason to believe that the currency notes were counterfeit and also the fact that the accused intended to use the same as genuine or that it might be used as genuine. In support of this submission, He relied upon the judgment of the Apex Court as also various High Courts. 12] With the assistance of the learned counsel for the parties, I was taken through the evidence on record. PW 1 Adam Shaikh, Head Constable attached to Malwani Police Station deposed that on 30th July, 2007 while he was on duty, the Senior Police Inspector - Hargude had called him, PSI Sadashiv Sawant (PW 7), API Ravrane and two detection staff members to police station as he had received information that two persons with fake currency notes would be coming to Bazar Galli, Gate No.5, Malwani, Malad (West), Mumbai for selling and distributing fake currency. All who gathered there 9 JUDGMENT - CRI.APPEAL NO.993-2008.odt discussed the matter into the detection room. As per the instructions of Senior P.I. Hargude, PW 7 Sawant had asked PW 1 Adam Shaikh to arrange two panch witnesses. Accordingly, he brought PW 6 Sohel and one Faheem Jafari. API Ravrane instructed to the panch witnesses about the action and their role as panch witnesses into the matter. He collected relevant stationary, seal, Lac seal etc. to draw the panchnama. Two teams were drawn. One of the teams was headed by API Ravrane and another team was headed by PW 7 Sawant. 13] At 11.40 am PW 1 Adam Shaikh and other Police Officers and panch witnesses noticed two persons as pointed by the informer. When both accused came near the raiding party, both the teams had caught accused. PW 1 took personal search of accused no.1 and found three bundles of currency notes in his pant pocket. When he examined those currency notes, it was found that numbers 500 were missing from its usual places in the water mark and above Government seal. The middle security mark was also faint. During handling of those notes, its colour was smearing to fingers. They recovered two bundles of currency notes each containing 90 notes and one bundle containing 86 currency notes from accused no.1. All those currency notes were fake. He further deposed that when he enquired with the accused as to from whom they collected those currencies, in reply, they stated that they had obtained the currency 10 JUDGMENT - CRI.APPEAL NO.993-2008.odt notes from one person by name Kayyum from the State of Gujarat. He had found 100 fake currency notes from accused no.2. Police H.C. Shri.Thakur had taken personal search of accused no.2. The fake currency notes were seized under the panchnama in the presence of two panch witnesses and they were sealed and labelled. Bundle nos.1, 2 and 3 consisting currency notes as mentioned 90, 90 and 86 were collectively marked as Article `2’ collectively and bundle no.4 of 100 currency notes of Rs.500/- was marked as Article `3’ collectively along with labels and seals. The accused and seized fake currencies were taken to the Police Station and he lodged FIR. 14] In the cross-examination, he deposed that both the panch witnesses and the Senior Police Inspector Hargude had received information that two persons with fake currency notes would be visiting Bazar Galli, Near Gate No.5, Malwani, Malad (West), Mumbai. Mr.Hargude called him, PSI Sadashiv Sawant (PW 7) and API Ravrane, two police staff and detection staff and briefed them about the information received by him. As per instruction of Mr.Hargude, PW 7 Sawant asked PW 1 Shaikh about raiding party had not offered personal search. Before taking personal search of the accused, he had not made any entry in the register while collecting the stationary from the police station. He further deposed that he had not followed relevant procedure while collecting and returning the remaining stationary to the police station. He admitted that he did not 11 JUDGMENT - CRI.APPEAL NO.993-2008.odt know whether fake currency notes are available in the marked or not. After examining the currency notes, he identified about its genuineness though he was not trained through his department to that effect. He denied the suggestion that no information was received and that no trap was laid. He further denied that no fake currency was found in possession of the accused. 15] PW 2 Mahesh Gawade, Police Constable deposed to the same effect that the accused were caught and they found three bundles of currency notes of Rs.500/- each in possession of accused no1 and one bundle of Rs.500/- in possession of accused no.2. Police had drawn panchnama on the spot and seized articles and then had taken accused to the police station. He also deposed that when the currency notes were examined, it was found that there was no water mark of Gandhiji and no cord. Colours of the currency notes were smearing to their hands. In the cross-examination, he deposed that he along with PW 1 Adam Shaikh, Head Constable Thakur, PN- Fernandes, PC-Gholap, PC – Shaikh, API Raorane, PSI Sawant had gone to the spot. He had taken the seized currency in hand and had verified the currency notes. 16] PW 3 Sadaf Ali Hyder Ali was examined as PW 3 at exhibit 15. He is panch to the house seizer panchnama of accused no.1 and the house seizer panchnama is produced at exhibit 16. PW 4 12 JUDGMENT - CRI.APPEAL NO.993-2008.odt Balasaheb Bhor, Police Constable was examined at exhibit 19. He deposed that PSI Sawant had directed him to reach two bundles containing fake currency notes along with forwarding letter to Nasik Currency Notes Press. He reached those two bundles to Nasik Currency Press and received its receipt. In the cross-examination, he stated that he had collected two packet from the safe custody of the Police Station and signed in token thereof. 17] PW 5 Mahendra Devram Gholap, Police Constable was examined at exhibit 22. He deposed that PW 7 PSI Sawant had given him letter received from the Government Currency Notes Press, Nasik and asked him to bring Muddemal and report therefrom. He went to the said Press and collected two sealed packets which he had taken to Malwani Police Station. In one of the sealed packets, there was Expert’s opinion in connection with fake currency notes. He produced the report and the packet which was sealed. In another sealed packet, Muddemal and fake currency notes were found and the sealed packet was shown to him. In cross- examination, he deposed that after handing over the sealed packet to the Government Currency Press Staff, they obtained his signature in the register. 18] Prosecution examined PW 6 Sohel Ajgar Wajahat Hussain Rizvi at exhibit 26. He is examined as panch to the seizer 13 JUDGMENT - CRI.APPEAL NO.993-2008.odt panchnama dated 30 th July, 2007 at exhibit 27. He deposed that in the personal search of the accused no.1, three packets of Rs.500/- fake currency notes were found. There were 90 notes in each two bundles and 86 notes in one bundle. In the personal search of accused no.2, one bundle of Rs.500/- fake currency notes were found which was containing 100 notes There was mistake in those currency notes in water mark i.e. number 500 was missing, its golden colour was loosing its place and was smearing their hands. The police had drawn panchnama on the spot by mentioning fake currency notes and police had put labells of the panchas signatures on the seized currency bundles. In the cross-examination, he deposed that he stood panch witness in 2-3 cases and one criminal case is pending against him in Police Station which was lodged in the October, 2007. 19] Lastly, the prosecution examined PSI Sadashiv Tukaram Sawant as PW 7 at exhibit 29, who investigated the case. He deposed that the Senior Police Inspector Hargude had received information that two persons with fake currency would be visiting Bazar Galli, Near Gate No.5, Malwani, Malad (West), Mumbai. According to his instructions, PW 7 had asked PW 1 Adam Shaikh to arrange two panch witnesses. They had introduced themselves to panch witnesses and gave idea about proposed action and to draw panchnama. Two teams were drawn out of which, one team was 14 JUDGMENT - CRI.APPEAL NO.993-2008.odt headed by API Raorane and other team was headed by him. PW 6 Sohel – panch witness was in his team and another panch witness Fayeem was in the team of API Raorane. 20] At about 11.40 am the informer had pointed both the accused who were coming from plot no.13. They gave signal to another team of API Raorane. When both the accused had reached near Rajdeep Hardware, both the teams had caught them. In the presence of panch witness, PW 1 Adam had taken personal search of accused no.1 and found three bundles of currency notes of Rs.500/- each each having rubber bands. Out of three bundles, two were containing 90 currency notes of Rs.500/- each and one bundle was containing 86 currency notes of Rs.500/- each. On examination of the currency notes, they found that there was no water mark on Rs. 500/- in the said currency notes. The security thread was also faded one and if the currency note is rubbed by hand fingers then the fingers were being smeared with colours of the currency notes. They had put each bundle in plastic bags and all three plastic bags were rapped in rapper. Labells of panshas’ signature were put which was exhibit as Exhibit-A. In so far as accused no.2 is concerned, his personal search was taken by Head Constable Prabhakar Thakur, who was from the team of API Raorane. HC-Thakur had found one bundle of 100 currency notes of Rs.500/- in the rear pant pocket of accused no.2. On examination of the currency notes in the presence 15 JUDGMENT - CRI.APPEAL NO.993-2008.odt of panch witness, it was found that the currency notes were fake. The bundle of the currency notes were put in the plastic bag and the plastic bag was rapped by another rapper. He had put labbles of panchas’ signatures and put words as Exhibit – B. Before packing of these currency notes found in possession of the accused, their numbers were noted. During the enquiry on the spot the accused had revealed that they had brought those currency from one Kayyum from Surat. The panchnama drawn on the spot and then they had taken the accused, seized currency and panchnama to police station. The panchnama at exhibit 27 bears his signature and also signatures of panch witnesses and accused. 21] He further deposed that PW 5 Mahendra Gholap was sent to Government Currency Press Nasik. Said Gholap went to Nasik and brought two sealed envelopes containing report of the Expert in respect of those currency notes and the Expert’s report. On 3 rd August, 2007, he had taken accused no.1 to Surat to trace Kayyum from whom accused obtained bundles of currency notes. With the help of local police they traced out house of Kayyum. He, however, was absent and on further enquiry it transpired that he had left said premises prior to two years and shifted to Navsari. He thereafter went to Navsari but could not trace Kayyum. 22] Mr.Mehta criticized evidence of PW 7 PSI Sawant by 16 JUDGMENT - CRI.APPEAL NO.993-2008.odt contending that PW 7 admits that he did not seal the articles with labells of panchas’ signatures seized at exhibit 16. Mr.Mehta submitted that the prosecution has not made out case under Section 489-B IPC against the accused. Section 489-B IPC reads as under :- 489B. Using as genuine, forged or counterfeit currency-notes or bank-notes.- Whoever sells to, or buys or receives from, any other person, or otherwise traffics in or uses as genuine, any forged or counterfeit currency-note or bank-note, knowing or having reason to believe the same to be forged or counterfeit, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall be liable to fine.] The prosecution has to prove that : (i) the currency note or bank note in question was forged or counterfeit; (ii) the accused sold to, or bought or received from same person or trafficked in or used as genuine, such currency note or bank note. (iii) when he did so, he knew or had reason to believe that it is forged or counterfeit. 17 JUDGMENT - CRI.APPEAL NO.993-2008.odt In the present case, the prosecution has not proved that the accused sold to, or brought or received from some person or trafficked in or used as genuine such currency note or bank note. From the evidence on record, he submitted that it is the case of prosecution that when the accused came to Bazar Galli, the two teams nabbed the accused. Accused were neither selling, buying or receiving from some person counterfeit/fake currency notes. Though charge of trafficking was framed against the accused, the prosecution has not laid any evidence establishing that the accused were trafficking in fake currency notes. He submitted that PW 1 and PW 7 deposed that during the search, on enquiry, accused told them that they had received fake currency notes from one Kayyum from the State of Gujarat. He submitted that this piece of evidence is inadmissible and cannot be relied upon. He invited my attention to the meaning of term “Traffic” and “Trafficking” from Black’s Law Dictionary, which reads as under :- Traffic. Commerce; trade; sale or exchange of merchandise, bills, money, and the like. The passing or exchange of goods or commodities from one person to another for an equivalent in goods or money. The subjects of transportation on a route, as persons or goods; the passing to and from of persons, animals, vehicles, or vessels, along a route of transportation, as 18 JUDGMENT - CRI.APPEAL NO.993-2008.odt along a street, highway, etc. Trafficking. Trading or dealing in certain goods and commonly used in