APEAL/207-296-315/2005 1 Dixit IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.207 OF 2005 1. Mohd. Farooque Yusuf Chaiwala, ) Aged : 22 Years, Indian Inhabitant, ) R/a. 102, J.B. Shah Marg, Shirinbai Bldg., ) 3rd Floor, Room No.22, Khadak Dongri, ) Mumbai – 400 009. ) ) 2. Umar Ismail Machhiwala, ) Aged : 26 Years, Indian Inhabitant, ) R/a. 24/27, Jekaria Masjid Street, ) Madina Bldg., 1st Floor, Room No.6, ) Dongri, Mumbai – 400 009. ) ) 3. Maqsood Ismail Girnari, ) Aged : 27 Years, Indian Inhabitant, ) R/a. 5, Nishanpada, Cross Lane, ) Nensi Bldg., 2nd Floor, Room No.13/14, ) Dongri, Mumbai – 400 009. ) ) 4. Sirajuddin Abdul Karim, ) Aged : 28 Years, Indian Inhabitant, ) R/a. Geetanagar, Phase-4, Bldg. No.4/6, ) Room No.302, Naya Nagar, Mira Road (E), ) Dist. Thane. ) ) 5. Ashraf Abdul Kadar Shaikh, ) Aged : 43 Years, Indian Inhabitant, ) R/a. Hashish Tower, Plot No.304, ) Naya Nagar, Mira Road (E), Dist. Thane. ) ) 6. Mohd. Mamu Masjid, ) Aged : 33 years, Indian Inhabitant, ) R/a. Hondasa Lodge, Room No.101, ) 394, Omar Bldg., 2nd Floor, ) Near Novelty Cinema, Grant Road, ) Mumbai. ) ... Appellants Versus APEAL/207-296-315/2005 2 Dixit The State of Maharashtra ) (At the instance of C.S.T. Railway Police ) Station vide C.R. No.5 of 02) ) ... Respondent ALONG WITH CRIMINAL APPEAL NO.296 OF 2005 Umar Machiwalla s/o. Ismail Machiwalla, ) Aged : 26 Years, ) R/a. 24/27, Jekaria Masjid Street, ) Madina Bldg., 1st Floor, R. No.6, ) Khadak Dongri, Mumbai – 400 009. ) ... Appellant Versus The State of Maharashtra ) (C.S.T. Police Stn. C.R. No.-5/02) ) ... Respondent AND CRIMINAL APPEAL NO.315 OF 2005 Ashraf Shaikh Abdul Kadar Shaikh, ) Aged : 44 Years, ) R/a. Hashish Tower, Flat No.304, ) Nayanagar, Mira Road, Dist. Thane. ) ... Appellant Versus The State of Maharashtra, ) C.S.T. Railway Police Station, ) P.C.R. No.5 of 2002. ) ... Respondent Mr. Ayyaz Khan for Appellant Nos.1 and 6 in Appeal No.207 of 2005. Mr. Amin Solkar with Mr. Yakub Shaikh for Accused Nos.2 to 5 in Appeal No.207 of 2005 and for the Appellants in Appeal No.296 of 2005 and Appeal No.315 of 2005. Mr. H.J. Dedhia, APP, for the Respondent-State of Maharashtra. APEAL/207-296-315/2005 3 Dixit CORAM : B. H. MARLAPALLE & A.M. THIPSAY, J.J. RESERVED ON : 6 TH APRIL, 2011. PRONOUNCED ON : 21 ST APRIL, 2011. JUDGMENT {PER A.M. THIPSAY, J.} : 1. The Appellants were the accused Nos.1, 2, 3, 4, 6 and 10 respectively in Sessions Case No.582 of 2002. By his judgment and order dated 21st February, 2005, the 11th Ad-Hoc Additional Sessions Judge at Sewree, Mumbai, convicted the Appellants for the offences punishable under Sections 489B and 489C of the Indian Penal Code. The learned Judge imposed a sentence of imprisonment for life and a fine of `10,000/- with a default sentence of R.I. for three months with respect to the offence punishable under Section 439B of the IPC and a sentence of R.I. for seven years and fine of `10,000/- with a default sentence of R.I. for three months with respect to the offence punishable under Section 489C of the IPC. The Appellants had been charged also with respect to offences punishable under Sections 489A, 489D and 120B of the IPC, but the learned Judge acquitted them of the charge of the said offences. Being aggrieved by the order of conviction and sentence, as passed by the learned Ad-Hoc Additional Sessions Judge, the Appellants have approached this Court by filing the present Appeals. APEAL/207-296-315/2005 4 Dixit 2. The prosecution case before the trial Court was in brief as follows : PSI Prakash Thakur (PW-1) was attached to the C.S.T. Railway Police Station in the year 2001 as ASI He was on duty from 8 p.m. on 17th January, 2002 to 2:00 p.m. on the next date. At about 11 a.m. on 18th January, 2002 while he was keeping a watch in the waiting room at C.S.T. Railway Station, one person – i.e. the Appellant No.1 – approached him and asked for a change of `100/-. PSI Prakash Thakur (PW-1) took the currency note of `100/- denomination given to him by the Appellant No.1 and gave him two currency notes of `50/- denomination. The Appellant No.1 thereafter went away. However, PSI Prakash Thakur (PW-1) observed the currency note of `100/- denomination handed over to him by the Appellant No.1 carefully and suspected that it was counterfeit. He, therefore, narrated the incident to his colleague PSI Shivaji Adagale (PW-10) and other police personnel who were present nearby. PSI Prakash Thakur (PW-1) and the others searched for the Appellant No.1 who was found by them standing at the taxi stand in front of the Reservation Hall of the C.S.T. Railway Station. The Appellant No.1 was apprehended and the search of his person was taken in the presence of Panchas Mr. Aarif Shaikh Husain and Mr. Ravi Basappa Gauda (PW-7). Hundred currency notes of `100/- denomination, which were suspected to be counterfeit, were found on the person of the Appellant No.1 in addition to the two APEAL/207-296-315/2005 5 Dixit currency notes of `50/- denomination, which had been given to him by PSI Prakash Thakur (PW-1). PSI Prakash Thakur (PW-1) lodged a report which was treated as the First Information Report (Exhibit-21). It was recorded by ASI R.R.Maind (PW-11). Further investigation was assigned to PSI Shivaji Adagale (PW-10). On 19th January, 2002, the Appellant No.1, during interrogation, gave certain information pursuant to which the Police and the Panchas were led to the shop of one Rajendra Singh. The Appellant No.1 led the police party to the second floor of Ghaswala Building and produced 100 counterfeit currency notes of `100/- denomination from a suite case. The said notes were seized in the presence of Panchas Joseph Mudaliar (PW-2) and Mohd. Hanif Khan (PW-6) under a Panchnama (Exhibit-23). Pursuant to the information disclosed by the Appellant No.1, Appellant No.2-Umar Ismail Machhiwala and Appellant No.3- Maqsood Ismail Girnari were also arrested. On the basis of information disclosed by Appellant No.3-Maqsood Ismail Girnari, the Police party and the Panchas were led to his house in Dongri from where the Appellant No.3 is said to have produced 100 counterfeit currency notes of `100/- denomination which were seized under a Panchnama (Exhibit-37). Similarly, Appellant No.2-Umar Ismail Machhiwala also disclosed certain information in the course of investigation pursuant to which the Police party and the Panchas were led to his house situated APEAL/207-296-315/2005 6 Dixit at Dongri where from the accused produced 100 currency notes of `100/- denomination. The notes were seized under a Panchnama (Exhibit-38). Pursuant to the information disclosed by Appellant No.2-Umar Ismail Machhiwala, Appellant No.4-Sirajuddin Abdul Karim was arrested. During his interrogation, Appellant No.4-Sirajuddin Abdul Karim led the Police party and the Panchas to his house at Geeta Nagar, Phase-4, Bldg. No.4/6, Room No.302, Naya Nagar, Mira Road (East), Dist. Thane from where he produced 30 counterfeit currency notes of `100/- denomination. The said currency was taken charge of in the presence of Panchas Haridas Thakkar (PW-4) and one Kanaiya Chandak under a Panchnama (Exhibit-28). Pursuant to the information disclosed by Appellant No.4-Sirajuddin Abdul Karim, Appellant No.5-Ashraf Abdul Kadar Shaikh was apprehended, who again gave certain information pursuant to which five counterfeit currency notes of `100/- denomination were seized from his house at Hashish Tower, Plot No. 304, Nayanagar, Mira Road (East), Dist. Thane under a Panchnama (Exhibit-34), with Vijay Swami (PW-8) and one Giridharan, acting as Panchas. In the course of investigation, one Mohammad Faizal Potakandam (original Accused No.5) was arrested and seventy counterfeit currency notes of `100/- denomination are said to have been seized at his instance from Room No.208 in Hotel Shahadab Palace, Shahjad Manjil, 38, Siddhi Mohalla, Near Hotel Sana, Dongri, Mumbai – 400 009. Pursuant to the disclosure statement made by the said APEAL/207-296-315/2005 7 Dixit Mohammad Faizal Potakandam (original Accused No.5), one Usmal Sunni (original Accused No.7) and one Hashish Sunni (original Accused No.8) were arrested and certain machines and articles allegedly used for printing counterfeit currency notes were seized from the house of the said Hashish Sunni (original Accused No.8). One Dhirajlal Kanojia (original Accused No.9) and the Appellant No.6-Mohd. Mamu Masjid were also arrested in the course of investigation. Twenty counterfeit currency notes of `100/- denomination and one of `1,000/-, are said to have been recovered on 24th February, 2002 pursuant to the information disclosed by the Appellant No.6- Mohd. Mamu Masjid from Hondasa Lodge at Grant Road, in the presence of Panchas Rejis Anthony (PW-3) and Raju Mudaliar (PW-5) under a Panchnama (Exhibit-26). The seized counterfeit currency notes were sent to the Reserve Bank of India, for examination and on examination a report that they were not genuine was submitted, but it was also adviced by the same letter (Exhibit-52) that final opinion might be obtained from the ‘Note Printing Press’ at Nashik/Dewas. Thereafter the notes were sent to India Security Press, Nashik for examination, with a forwarding letter (Exhibit-41). However, PSI Shivaji Adagale (PW-10) filed the charge sheet without waiting for the report from the India Security Press, Nashik. In due course, Ashok Desai, Sr. Inspector of Police, C.S.T. Railway Police Station, （PW-12) received the opinion. APEAL/207-296-315/2005 8 Dixit During the course of trial, Mohammad Faizal Potakandam, Usmal Sunni and Hashish Sunni, (original accused Nos.5, 7 and 8 respectively), absconded and as such their trial was separated. The trial thus proceeded only against the present Appellants and the said Dhirajlal Kanojia (original accused No.9). The said Dhirajlal Kanojia (original accused No.9) was, however, acquitted by the trial Court. As aforesaid, being aggrieved by the judgment of conviction and the sentences imposed by the trial Court, the Appellants have approached this Court in Appeal. 3. The prosecution examined twelve witnesses during the trial, all of whom, except PW-9, have been referred to above, while narrating the prosecution case. Subhashchandra Gupta (PW-9), was, apparently examined to show that on a previous occasion one Mohd. Faizal (probably the original Accused No.5) had offered counterfeit currency notes to him, but this witness did not support the prosecution and was declared hostile. Even otherwise, the relevancy and admissibility of his evidence would be extremely doubtful. APEAL/207-296-315/2005 9 Dixit 4. With the assistance of Mr. Ayyaz Khan, the learned Counsel for the Appellants, and Mr. Dedhia, the learned APP for the Respondent-State of Maharashtra, we have gone through the entire evidence. We have also gone through the judgment of the trial Court carefully. 5. A number of contentions have been raised by Mr. Ayyaz Khan. He submitted, first and foremost, that the charge against the Appellants, (and even the other accused), was based on the theory of conspiracy. He submitted that the basis of the charge was that the alleged possession of the counterfeit currency notes by the Appellants and other accused persons was pursuant to a conspiracy between all of them. He pointed out that the learned Judge has acquitted all the accused of the charge of conspiracy and has held them individually liable for having committed offences punishable under Sections 489B and 489C of the IPC. According to Mr. Ayyaz Khan, when the charge was with respect to offences punishable under Sections 489B and 489C of the IPC read with Section 120B of the IPC, it was not permissible to record conviction in respect of the offences punishable under Sections 489B and 489C of the IPC simplicitor. In the facts and circumstances, we are not inclined to give much importance to this aspect. It was clear from the prosecution case itself that the Appellants were also alleged to have possessed counterfeit currency notes and, therefore, they certainly knew what case they were required to meet. The failure to frame charges of offences APEAL/207-296-315/2005 10 Dixit punishable under Sections 489B and 489C of the IPC simplicitor, has not, in our opinion, prejudiced any of the Appellants and consequently there has been no miscarriage of justice on that ground. Thus, in our opinion, on this ground, the trial cannot be said to be vitiated and certainly the Appellants would not be entitled to be acquitted on this ground. 6. It is next contended by Mr. Ayyaz Khan that there has been no independent evidence to establish the possession of counterfeit currency by any of the Appellants. He submitted that none of the Panch witnesses who were examined in support of the alleged recoveries and seizures of the counterfeit currency from or at the instance of the Appellants have supported the prosecution case. He submitted that the theory of the possession of the counterfeit currency notes by the Appellants gets support only from the evidence of the Police witnesses and that therefore it was unsafe to act upon such testimony. He further submitted that even otherwise, the testimony of the Police witnesses suffered from serious infirmities and the conviction of the Appellants could not be based solely upon the same. He also submitted that a material circumstance viz. - that the currency notes allegedly found with the Appellants were counterfeit, and that the Appellants knew that, was not put to any of the Appellants during their examination under Section 313 of the Code of Criminal Procedure. According to him, this aspect also rendered the conviction of the Appellants bad. APEAL/207-296-315/2005 11 Dixit 7. It is clear that since the charge of conspiracy has been held to be not proved and rightly so, in our opinion, the case of each Appellant will have to be considered with respect to the alleged possession of counterfeit currency notes by such Appellant. It may be recalled that the investigation commenced on 18th October, 2002, after the Appellant No.1 was allegedly found to be possessing counterfeit currency notes. In that context, the evidence of PSI Prakash Thakur (PW-1), PSI Shivaji Adagale (PW-10) and ASI Ramdas Maind (PW-11) is relevant. The Panch witness to the recovery Ravi Basappa (PW-7) has not supported the prosecution case. 8. According to PSI Prakash Thakur (PW-1), the Appellant No.1 came and asked for change of `100/- in consequence of which PSI Prakash Thakur (PW-1) gave two currency notes of `50/- denomination to him and took the note delivered by the Appellant No.1. When PSI Prakash Thakur (PW-1) suspected the currency note to be counterfeit and when he with the help of others apprehended the Appellant No.1, search of the person of the Appellant No.1 was taken and apart from the counterfeit currency, 2 currency notes of `50/- denomination, which had been taken by the Appellant No.1 from PSI Prakash Thakur (PW-1), were also recovered during that search. Interestingly, however, the said genuine currency notes of `50/- each, have not at all been produced before the Court. APEAL/207-296-315/2005 12 Dixit What had happened to those notes, is not borne out from the evidence. According to PSI Prakash Thakur (PW-1), 99 currency notes of `100/- denomination were found in the search of the person of the Appellant No.1. However, according to the FIR (Exhibit-21), 100 currency notes of `100/- denomination were recovered from the possession of the Appellant No.1. PSI Shivaji Adagale (PW-10), the Investigating Officer, also speaks of recovery of counterfeit currency purporting to be worth of `10,000/- in the denomination of currency notes of `100/- as having been found in the possession of the Appellant No.1. ASI Ramdas Maind (PW-11) also states that PSI Prakash Thakur (PW-1) produced the Appellant No.1 before him along with one bundle of hundred currency notes of `100/- denomination and two currency notes of `50/- denomination. Thus, the claim of PSI Prakash Thakur (PW-1) that 99 currency notes of `100/- denomination were found with the Appellant No.1 does not appear to be correct and at any rate, not in consonance with the prosecution case, as reflected from the First Information Report and other evidence. Apparently the figure ‘99’ has been mentioned by PSI Prakash Thakur (PW-1) with the object of supporting the alleged fact that he had received a counterfeit currency note already from the Appellant No.1. It would be impossible, otherwise, that he should speak of 99 currency notes when according to the prosecution’s own case 100 currency notes were recovered from Appellant No.1. This gives an impression that the story of one note having been given by the Appellant No.1 to PSI Prakash Thakur (PW-1) for getting change etc. might have APEAL/207-296-315/2005 13 Dixit been introduced just to satisfy the ingredients of an offence punishable under Section 489B of the IPC, which, inter alia, requires selling, or otherwise trafficing in, or using as genuine, counterfeit currency notes, and may not be true. 9. According to PSI Shivaji Adagale (PW-10), on 19th January, 2002, the Appellant No.1 gave some information to the Police pursuant to which the Police party was led to second floor of Ghaswala Building and that the Appellant No.1 took out a suite case, which was in the premises, opened it and pointed out cash of `10,000/- consisting of currency notes in the denomination of `100/-. The said currency notes were then seized under Panchnama, but this evidence is not supported by the Panch witnesses. Joseph Mudaliar (PW-2) and Mohd. Hanif Khan (PW-6) who are supposed to have acted as Panchas in respect of the disclosure statement made by the Appellant No.1 and the subsequent recovery and seizure of the counterfeit currency, have not supported the case of the prosecution. PSI Shivaji Adagale (PW-10) himself was not able to identify or state as to the specific currency notes that were said to have been recovered from the premises situated in the said Ghaswala building. 10. There is also another infirmity in the prosecution case with respect to the alleged recovery of currency notes at the instance of the Appellant No.1 pursuant to a disclosure statement allegedly made by him on 19th February, 2002. As per APEAL/207-296-315/2005 14 Dixit the record of the Seizure Panchnama (Exhibit-23), the Panchnama commenced at 12:40 hrs. and concluded by 14:00 hrs. However, the memorandum of the statement allegedly made by the Appellant No.1 shows the time of making the statement as between 16:30 hrs. to 17:00 hrs. Thus, going by these timings, it is impossible to hold that the seizure, which had taken place earlier, was pursuant to a disclosure statement which was yet to be made. In the cross-examination, PSI Shivaji Adagale (PW-10) has not been able to offer any explanation regarding this obvious discrepancy in the timings recorded in the memorandum of statement and seizure Panchnama (Exhibit-23). The least that can be concluded from this is that the record of the happenings, as made by the Investigating Agency, cannot be accepted as correct. 11. Coming to the cases of the Appellant Nos.2 and 3, the involvement of Appellant No.3-Maqsood Ismail Girnari is said to have been disclosed pursuant to the information given by the Appellant No.1-Mohd. Farooque Yusuf Chaiwala and the involvement of the Appellant No.2-Umar Ismail Machhiwala is said to have been disclosed pursuant to the information given to the Police by the Appellant No.3-Maqsood Ismail Girnari. Counterfeit currency purporting to be worth `10,000/- and consisting of currency notes in the denomination of `100/- is said to have been recovered from each of them. Both of them are said to have produced the counterfeit currency from their respective houses. The Panch APEAL/207-296-315/2005 15 Dixit witnesses to the alleged recoveries and seizures have not been examined. Further, the Investigating Officer PSI Shivaji Adagale (PW-10) does not state that the currency notes so seized were packed, labelled and sealed. 12. With respect to the Appellant No.4-Sirajuddin Abdul Karim also the evidence requiring consideration is only of PSI Shivaji Adagale (PW-10). His complicity in the matter is said to have been revealed pursuant to the information given by Appellant No.2-Umar Ismail Machhiwala during interrogation. Appellant No.4-Sirajuddin Abdul Karim was arrested and he also is said to have made a disclosure statement pursuant to which cash of `3,000/- consisting of currency notes of `100/- denomination from a cupboard kept in his house at Mira Road was recovered. Though, in this case, PSI Shivaji Adagale (PW-10) claims to have sealed and lebelled the recovered cash, the record in that regard, i.e. Panchnama (Exhibit-28), does not mention about the aspect of sealing; and the Investigating Officer had to admit in the cross-examination that the Panchnama does not disclose that the currency notes were sealed and labelled. The panch witnesses to the alleged recovery have not been examined and no reason for their non- examination was advanced. 13. Coming to the Appellant No.5-Ashraf Abdul Kadar Shaikh, the evidence does not throw light on how he came to be arrested, but the evidence against him APEAL/207-296-315/2005 16 Dixit also consists of the claim that he made a statement pursuant to which five currency notes of the denomination of `100/- were seized from his house at Mira Road. Though the Investigating Officer (PW-10) states that the currency notes were seized and sealed under a Panchnama, the Panchnama does not mention the aspect of sealing. This also has been admitted by PW-10 in his evidence. The panch Vijay Swami (PW-8) has not supported the prosecution case. 14. As regards Appellant No.6-Mohd. Mamu Masjid, (i.e. the original accused No.10), he was arrested on 21st February, 2002. The evidence against him is only that of PSI Shivaji Adagale (PW-10). It is of the same type viz. that he made a disclosure statement pursuant to which one currency note of `1,000/- and 20 counterfeit currency notes of `100/- denomination were recovered from Hondasa Lodge at Grant Road where the original accused No.10 is supposed to have led the Police party and the Panchas. Out of the twenty currency notes of `100/- denomination said to have been seized at the instance of the original accused No. 10, fourteen are said to be in torn condition. This time, PSI Shivaji Adagale (PW-10), the Investigating Officer, does not state that the notes were sealed. The panch witnesses Rejis Anthony (PW-3) and Raju Mudaliar (PW-5) have not supported the prosecution case. APEAL/207-296-315/2005 17 Dixit 15. Thus, there are some material infirmities in the prosecution case, which are as follows :- (i).There are no independent witnesses to corroborate the evidence of recoveries or seizures of the counterfeit currency in as much as the Panch witnesses have not supported the prosecution case. (ii).There is no satisfactory evidence to show that the alleged counterfeit currency notes were sealed and labelled under the respective Panchnamas after the respective seizures. (iii).In some cases, the Panch witnesses have not been examined at all, and no reason for their non- examination has been mentioned. 16. The question is whether under such circumstances the testimony of the Police Officers who speak about such seizures can be safely believed. APEAL/207-296-315/2005 18 Dixit 17. Undoubtedly, there is no rule of law that the testimony of a Police Officer or even the Investigating Officer cannot be believed unless it is corroborated by some independent witnesses. However, the fact remains that the Police Officers’ testimony needs to be subjected to a thorough scrutiny. Among other things, while assessing such evidence, the sincerity or bonafides of the investigating agency would assume importance. 18. The evidence of PSI Prakash Thakur (PW-1) and PSI Shivaji Adagale (PW-10) does not inspire confidence in our minds. Firstly because the discrepancy regarding the number of currency notes recovered from Appellant No.1 by PSI Prakash Thakur (PW-1) on 18th October, 2002 has gone unexplained. As already discussed, if actually 100 currency notes of `100/- denomination were recovered from the Appellant No.1 and if PSI Prakash Thakur (PW-1) is wrongly giving the number as 99, the only inference that can be safely drawn is that the figure 99 has been arrived at to make it suite the story of one currency note having already been given to PSI Prakash Thakur (PW-1) by the Appellant No.1. It is significant that a number of recoveries which have been effected are said to