Criminal Appeal No. 289-SB of 1995 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 289-SB of 1995 Dated of Decision: 01.04.2009 1. Surinder Pal son of Bhagat Ram, resident of Gandhi Nagar, Gali No. 11, Ludhiana. 2. Subhash Chander son of Devi Dass, resident of Birla Quarters, Shivpuri, Ludhiana. 3. Jaswant Singh son of Munsha Singh, resident of Rara, P.S. Sadar, Ludhiana. ... Appellants Versus State of Punjab ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Sandeep Mann, Advocate, for the appellants. Ms. Manjari Nehru Kaul, Deputy Advocate General, Punjab, for the respondent – State. SHAM SUNDER, J. * * * * This appeal is directed against the judgement of conviction and the order of sentence, dated 25.04.95, rendered by the Court of Additional Sessions Judge, Ludhiana, vide which, it convicted the 1 Criminal Appeal No. 289-SB of 1995 accused (now appellants), and sentenced them, as under:- Names of the accused (now appellants) Offence for which convicted Sentence awarded 1 2 3 (a) (b) (c) Subhash Chander Surinder Pal Jaswant Singh (i) Under Section 489-A of the Indian Penal Code. To undergo rigorous imprisonment for a period of five years each and to pay a fine of Rs. 200/- each, in default thereof, to further undergo rigorous imprisonment for a period of three months each. (d) (e) (f) Subhash Chander Surinder Pal Jaswant Singh (ii) Under Section 489-C of the Indian Penal Code. To undergo rigorous imprisonment for a period of five years each and to pay a fine of Rs. 200/- each, in default thereof, to further undergo rigorous imprisonment for a period of three months each. All the substantive sentences were ordered to run concurrently. 2. The facts, in brief, are that on 15.05.88, Shankar Dass, Sub Inspector, who was posted as Station House Officer, Police Station Division No. 4, Ludhiana, was present in Quilla Mohalla Chowk, Ludhiana, in a government jeep, alongwith Darshan Singh, Assistant Sub Inspector, PW4, and other Police officials. At that time, he received a secret information to the effect that Subhash Chander, accused, who was the owner of Ishar Printing Press, alongwith Surinder Pal, and Jaswant Singh, accused, was engaged in preparing 2 Criminal Appeal No. 289-SB of 1995 currency notes on a machine (Printing Press) and they were also in possession of currency notes. On the basis of this information, Shankar Dass, Sub Inspector, recorded ruqa exhibit PG and transmitted the same to Police Station, Division No. 4, Ludhiana, for the registration of a case through Constable Pritam Dass, on the basis whereof, formal first information report PG/1, was registered by Assistant Sub Inspector Sham Lal. Sat Pal, independent witness, was joined with the raiding party from Balmik Chowk. Thereafter, the Police party conducted a raid, at Birla Quarters, the place, which was disclosed by the secret informer. They found Jaswant Singh, accused, operating the printing press. Surinder Pal, accused, was supplying ink, whereas, Subhash Chander, accused, was setting the semi-printed dollars. All the accused were seen working, as a team, for preparing counterfeit dollars. They were apprehended. A tin containing green ink was found in possession of Surinder Pal. Semi-printed 12 dollars were found in possession of Subhash Chander, accused. Those dollars bore ‘100’ printed marks. Two proofs were found on the plank, where Jaswant Singh, accused, was working. One round stamp, which had a print, and two papers bearing that stamp were also found there. 250 dollars of the denomination of 100 contained in an envelope were recovered from the owner of the printing press. A tin containing black thick ink, and another tin containing white thick ink, were also recovered from near the printing press. A printing block, and another block, which was lying on the plank were also recovered. Both the blocks conformed to the 1-100 denomination dollars. The envelope containing 250 dollars 3 Criminal Appeal No. 289-SB of 1995 was sealed with the seal bearing impression D.S. 12 semi-printed dollars alongwith two papers containing numbers were converted into a parcel sealed with the same seal. The block and stamps were separately sealed, in a tin, and the seal after use was handed over to Sat Pal, public witness. The entire case property, referred to above, was taken into possession, vide recovery memo PC, which was attested by Assistant Sub Inspector Darshan Singh, Sat Pal, public witness, and Constable Amrik Singh. The licence of the printing press was taken into possession vide recovery memo PD. Sub-Inspector Shankar Dass, prepared the rough site plan PH, with correct marginal notes, of the place of recovery. The accused were arrested. The dollar bills of 100 denomination were got examined from Currency Note Press, Nashik Road, which submitted report PJ, containing the opinion that 250 forged U.S.A. dollars bills of 100 denomination, could easily deceive common people, who were not familiar with U.S.A. dollars. After the completion of investigation, the accused were challaned. 3. On their appearance, in the Court of the Committing Magistrate, the accused were supplied the copies of documents, relied upon by the prosecution. After the case was received by commitment, in the Court of Sessions, charge under Sections 120-B, 489-A, 489-C and 489-D of the Indian Penal Code, was framed, against the accused, which was read-over and explained to them, to which they pleaded not guilty, and claimed judicial trial. 4. The prosecution, in support of its case, examined Satish Kumar (PW1), Nachhatar Singh, draftsman (PW2), Assistant Sub Inspector Amar Chand (PW3), Assistant Sub Inspector Darshan Singh 4 Criminal Appeal No. 289-SB of 1995 (PW4), and Sub Inspector Shankar Dass (PW5). Report PJ of the Currency Note Press, Govt. of India, Nashik Road, was tendered into evidence by the Additional Public Prosecutor for the State. Sat Pal, public witness, was given up, as won over by the accused. Thereafter, the Additional Public Prosecutor for the State, closed the prosecution evidence. 5. The statements of the accused under Section 313 of the Code of Criminal Procedure, were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. Accused Jaswant Singh, stated that he was a rickshaw puller, and nothing was recovered from him. It was further stated by him, that he was apprehended from old vegetable market on 13.05.88, and taken to Police Station Division No. 4, Ludhiana, whereafter, he was falsely involved in this case. 6. Accused Subhash Chander, denied that he was found printing American dollars. He stated that he being a poor man, the Police arrested him two-three times due to enmity. It was further stated by him, that he was called from his house, and involved in this case. 7. Accused Surinder Pal, stated that on 13.05.88, he was taken from his house in Gandhi Nagar, Ludhiana, by Assistant Sub Inspector Darshan Lal, to Police Station Division No. 4, Ludhiana, without disclosing cause of his arrest, and, later on, he was falsely involved in this case. It was further stated by him that he had nothing to do with the alleged transaction. 8. In defence, the accused examined Shrikrishan Lal (DW1). Thereafter, the accused closed the defence evidence. 5 Criminal Appeal No. 289-SB of 1995 9. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted the accused, for the offences, punishable under Sections 489-A and 489-C of the Indian Penal Code, and sentenced them, as stated above. However, the accused were acquitted of the charge, framed against them, for the offences punishable under Sections 120-B and 489-D of the Indian Penal Code. 10. Feeling aggrieved, the instant appeal, was filed by the appellants. 11. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 12. The Counsel for the appellants, submitted that the evidence of the official witnesses, uncorroborated through any independent source, being incredible was not sufficient to convict the accused. He further submitted that the story of the prosecution was unnatural and improbable. He further submitted that according to one prosecution witness, the door of the house where the accused were allegedly found printing fake U.S.A. Dollars was not found bolted from inside. He further submitted that the natural human conduct, would have been to bolt the door tightly, so as to conceal the illegal activities. He further submitted that it was also not believable that none of the accused made any effort, to run away, after seeing the Police party. He further submitted that two witnesses from the locality, at the time of raid, at the house, in question, were not joined and, as such, there was clear-cut violation of the provisions of Section 100(4) of the Code of Criminal Procedure, which proved fatal to the case of the prosecution, but the 6 Criminal Appeal No. 289-SB of 1995 trial Court, did not take into consideration this aspect of the matter. He further submitted that the independent witness, in the name of Satpal, who was allegedly joined was not examined, and, as such, it could be said that material evidence was withheld by the prosecution. He further submitted that fake dollars could not be printed manually, on the machine, allegedly recovered. He further submitted that when the machine was produced, in the Court, the same was found to be non- functional and, as such, it could be said that no dollars could be printed thereon. He further submitted that the judgement of conviction and the order of sentence were liable to be set-aside. 13. On the other hand, the Counsel for the respondent, submitted that the evidence of the prosecution witnesses, was rightly found to be credible by the trial Court. She further submitted that according to Darshan Singh, Assistant Sub Inspector, the door of the house was bolted from inside, and when they knocked, it was opened, whereas, Shankar Dass, Inspector, stated that the door was just shut and they opened the same. She further submitted that it was only a discrepancy, which occurred, in the statements of the prosecution witnesses, due to the lapse of sufficient time. She further submitted that an independent witness namely Satpal, was joined, but he was given up as won over, as he sided with the accused. She further submitted that since the Investigating Officer, was to raid the house, immediately after the receipt of secret information, he did not waste any time, to make an attempt to join two witnesses, from the locality, as he apprehended that the information may be leaked, and the very purpose of the raid would 7 Criminal Appeal No. 289-SB of 1995 be defeated. She further submitted that the trial Court, was right, in holding that the accused committed the offences, for which, they were convicted. 14. From the statement of Satish Kumar, Senior Clerk, Misc. Branch, Office of the District Magistrate, Ludhiana, PW1, it was proved that Subhash Chander, accused son of Devi Dass, resident of 1936, Chowk Birla Quarter, Shiv Puri, Ludhiana, was operating Printing Press, under the name and style of Ishar Printing Press. He further stated that exhibit PA, is the correct carbon copy of the declaration furnished by Subhash Chander. It was further stated by him, that licence was granted to Subhash Chander, to operate the aforesaid printing press. Shankar Dass, Sub Inspector, PW5, stated that on 15.05.88, on receipt of secret information, he raided the Birla Quarters, when Jaswant Singh, was found operating the printing press, Surinder Pal, was supplying the ink, and Subhash Chander, was setting the semi-printed dollars. It was further stated by him that all the accused were working as a team for preparing the counterfeit dollars. It was further stated by him, that a tin containing green ink, semi-printed 12 dollars recovered from Subhash Chander, accused, bearing ‘100’ printed marks, two proofs, two planks, where Jaswant Singh, accused, was working, one round stamp, which had imprints on the sides, two papers bearing the stamp, 250 dollars contained in an envelope, from near the printing press of 100 denomination each, a tin containing black thick ink, another tin containing white thick ink, a printing block, from the machine, another block lying on the plank, conforming to the print 8 Criminal Appeal No. 289-SB of 1995 of 100 denomination dollars, 12 semi-printed dollars, alongwith two papers bearing numbers, the block, round stamp, and the printing press, were taken into possession, vide memo PC. The licence of the press was also taken into possession, vide memo PD. The statement of Shankar Dass, PW5, was duly corroborated by Darshan Singh, Assistant Sub Inspector, PW4, who was present with him, at the time of raid. Further corroboration to their statements, was provided, through the report exhibit PJ of the Currency Note Press, Nashik Road, which reads as under:- “These dollar bills under reference were examined by comparison method under scientific aids and opinion report is furnished below. These dollar bills of 100 deno. bearing portrait of “FRANKLIN” resemble with genuine dollar bills issued by “FEDERAL RESERVE NOTE” Washington D.C. However on careful examination it is confirmed that these are counterfeit dollars on account of the following reasons. 1. The finished size and design size in length is not correct. 2. When examined under ultraviolet light the paper flurescences blue light which is not found when genuine one is examined. 3. The paper used for counterfeit dollars is not a genuine one as coloured fibres are absent on surfaces. 4. Printing process adopted for printing these 250 Nos. of USA Dollar bills of 100 deno. is not the same which is used for printing genuine dollar bills. 5. Colour used for printing fronts and backs are not matching with the colours used for 9 Criminal Appeal No. 289-SB of 1995 printing genuine dollar. 6. The numbering figures are crude and broken at some places. 7. Fine design details on backs printing are missing. CONCLUSION:- These are 250 forged USA dollar bills of 100 deno. can easily deceive common people who are not familiar with USA dollars.” Nothing could be brought out, during the course of cross-examination of Shankar Dass, and Assistant Sub Inspector Darshan Singh, which may go to discredit their evidence. They had no ill-will, grudge or enmity, against the accused, to falsely implicate them, in the instant case. The trial Court was, thus, right in holding that the evidence of the prosecution witnesses, duly corroborated by exhibit PJ, report, referred to above, was cogent, convincing, reliable and trustworthy, and could be acted upon to come to the conclusion, that the accused committed the offences, punishable under Sections 489-A and 489-C of the Indian Penal Code. The submission of the Counsel for the appellants, that the evidence of the prosecution witnesses was incredible, and the trial Court, was wrong in recording conviction and awarding sentence to the accused, being incorrect, must fail, and the same stands rejected. 15. It may be stated here, that Darshan Singh, Assistant Sub Inspector, PW4, stated in clear-cut terms, that when they reached the house, it was bolted from inside. On the other hand, Shankar Dass, Sub Inspector, PW5, stated that it was only shut and they opened the same. These witnesses were examined, in the Court, after about six years of 10 Criminal Appeal No. 289-SB of 1995 the occurrence. Under these circumstances, it was not all possible for them to remember the minute details of the case. On account of sufficient lapse of time, and fading of memory, if Shankar Dass, stated that the door was only shut, they opened the same, and entered the house, that did not mean that the case of the prosecution became doubtful. The evidence of the prosecution witnesses, is required to be taken into consideration, in its entirety. Once the evidence of the prosecution witnesses, is read, in its entirety, then only one and one conclusion, that can be arrived at, is that the same was rightly found to be credible by the Court below. The door of the house, which was bolted from inside was opened by the accused, when a knock was given by the Police party. Since the accused were apprehended, all of a sudden, by the Police party, they were not afforded any opportunity, to run away. Under these circumstances, they possibly could not make any effort to do so. The story of the prosecution, could not, by any stretch of imagination, be said to be unnatural and improbable. The submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 16. No doubt, Satpal, independent witness, was joined by the Investigating Officer, at the time of search and seizure, yet he joined hands, with the accused, during the course of trial of the case, and, as such, no alternative was left with the Additional Public Prosecutor for the State, than to give him up, as won over. Accordingly, the Addi- tional Public Prosecutor for the State, vide his statement dated 20.04.94, gave him up, as won over by the accused. The Public prose- 11 Criminal Appeal No. 289-SB of 1995 cutor for the State, is the master of the case. It is for him to decide, as to whether, he wanted to examine a particular witness, or not. However, he is required to exercise the discretion, in a bona-fide manner. In the instant case, the discretion was exercised by the Additional Public Prosecutor for the State, in a bona-fide manner. There is nothing, on the record, to reveal, that he exercised such a discretion, in an arbitrary, and capricious manner. The other evidence, produced by the prosecu- tion, on scrutiny, has been found to be cogent, convincing, reliable, and trustworthy. Under these circumstances, the mere fact that Satpal, inde- pendent witness, was given up as won over, did not affect the merits of the case. In Masalti Vs. State of Uttar Pradesh, AIR 1965 (S.C.) 202, it was held that it is, undoubtedly, the duty of the prosecution to lay be- fore the Court, all material witnesses, available to it, whose evidence is necessary for unfolding its case, but it would be unsound to lay down it, as a general rule, that every witness, must be examined, even though his evidence, may not be very material, or even if, it is known that he/she has been won over or terrorized. In Roop Singh Vs. State of Punjab 1996 (1) RCR 146, a Division Bench of this Court, held that no adverse inference can be drawn, when the only independent witness, was given up by the prosecution, as won over by the accused. It was further held, in the said authority, that the panch witnesses, being hu- man beings, are quite exposed and vulnerable to human feelings of yielding, browbeating, threats and inducements, and giving up of the public witnesses, as won over, is fully justified, in the present day situation, prevailing in the society. In Karnail Singh Vs. State of Pun- 12 Criminal Appeal No. 289-SB of 1995 jab 1983 Criminal Law Journal, 1218 (DB), it was held that where the independent witness, was won over by the accused, and only the offi- cials were examined, as witnesses for the prosecution, who were con- sidered to be not interested persons, their evidence cannot be doubted, on the ground of their official status. Similarly in Appa Bai and an- other Vs. State of Gujrat AIR 1988 S.C. 696, it was held that the prosecution story cannot be thrown out, on the ground, that an inde- pendent witness had not been examined by it. It was further held that civilized people, are generally insensitive, when a crime is committed, even in their presence, and they withdraw from the victim's side, and from the side of the vigilant. They keep themselves away from the Courts, unless it is inevitable. Moreover, they think the crime like a civil dispute, between two individuals, and do not involve themselves in it. The principle of law, laid down, in the said authorities, is fully ap- plicable to the facts of the present case. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 17. Now coming to the violation of the provisions of Section 100(4) of the Criminal Procedure Code, it may be stated here that, as soon as, the secret information was received, the Investigating Officer, considered that his first and foremost duty was to conduct raid so as to apprehend the culprits red-handed. He also knew that, in case, he con- sumed time, in associating two witnesses of the locality, the possibility of leakage of secret information, resulting into abscondance of the ac- cused, and thereby defeating the very purpose of raid, could not be 13 Criminal Appeal No. 289-SB of 1995 ruled out. There was, thus, urgency in the move. Even otherwise, it is a matter of common knowledge, that the persons from the locality hardly come forward, to become witnesses in a raid, or recovery, with a view to avoid the wrath of the accused, their neighbourers, and complica- tions, which may arise at a later stage, on account of their appearance, in the Court, for evidence, from time to time. In this view of the matter, if the Investigating Officer, could not join two witnesses of the locality that did not, in any way, cause even a semblance of prejudice to the ac- cused. The provisions of Section 100(4) of the Code of Criminal Proce- dure, are not mandatory in nature. The search may be irregular or ille- gal, but the forged U.S. dollars recovered, in pursuance of such a search, may constitute an offence. Irregular or illegal search does not mean that the recovery effected, in pursuance thereof, if amounts to the commission of an offence, would also become illegal. At the most, on account of non-joining of two independent witnesses, from the locality, the Court is put on guard, to scrutinize the evidence of the prosecution witnesses, carefully and cautiously. The evidence of the prosecution witnesses, in this case, on scrutiny was found to be cogent, convincing, trustworthy, and reliable. In Sunder Singh Vs. State of U.P., AIR 1956 Supreme Court 411, two persons not belonging to the locality, had been joined, at the time of search. It was contended by the Counsel for the appellant, that since the provisions of (Section 103 Cr.P.C. Of 1898), now Section (100(4) Cr.P.C. 1973), were not complied with, at the time of search, the search and the consequent recovery became ille- gal and could not be taken into consideration. Repelling the contention, 14 Criminal Appeal No. 289-SB of 1995 it was held that assuming that the persons, who actually witnessed the search, were not respectable inhabitants of the locality, that circum- stance would not invalidate the search. It would only affect the weight of the evidence, in support of search and recovery. Hence, at the high- est, the irregularity in search and recovery, in so far as the terms of Sec- tion 103 Cr.P.C. of 1898 had not been fully complied with, would not affect the legality of the proceedings. In Puran Mal Vs. Director of In- spection (1974) 1 SCC 345, a Constitution Bench of the Apex Court, held that the material obtained by an illegal search, is not inadmissible into evidence, and can be acted upon, to record a conviction. In State Vs. Jasbir Singh (1996) 1 SCC 288, it was held that the evidence col- lected, in breach of the mandatory requirements, does not become inad- missible. The principle of law, in nut-shell, laid down, in the aforesaid authorities, was to the effect, that the provisions of Section 100(4) are not mandatory, in nature, and non-compliance therewith, will not viti- ate the investigation and trial. The principle of law, laid down, in the aforesaid authorities, is fully applicable, to the facts of the instant case. On account of non-compliance of the provisions of Section 100(4) of the Code of Criminal Procedure,