CR.A/747/2002 1/85 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 747 of 2002 With CRIMINAL APPEAL No. 744 of 2002 With CRIMINAL APPEAL No. 862 of 2002 With CRIMINAL APPEAL No. 868 of 2002 With CRIMINAL APPEAL No. 743 of 2002 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MS.JUSTICE H.N.DEVANI ================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================= CR.A/747/2002 2/85 JUDGMENT KAVIT ALIAS KAVINDRA VISHNUBHAI PANCHAL - Appellant(s) Versus STATE OF GUJARAT - Respondent(s) ================================================= Appearance : 1. Criminal Appeal No. 747/2002 Mr. Dharmesh D. Nanavati for Appellant Mr. R.C.Kodekar, APP for Respondent 2. Criminal Appeal No. 744/2002 Mr. Jal Soli Unwala for Appellant Mr. R.C.Kodekar, APP for Respondent 3. Criminal Appeal No. 862/2002 Mr. JM Panchal for Appellant Mr. R.C.Kodekar, APP for Respondent 4. Criminal Appeal No. 868/2002 Mr. Adil Mehta for Appellant Mr. R.C.Kodekar, APP for Respondent 5. Criminal Appeal No. 743/2002 Mr. Mr JM Panchal for Appellant Mr. R.C.Kodekar, APP for Respondent ================================================= CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MS.JUSTICE H.N.DEVANI Date : 25.9.2007/5.10.2007 COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.M.KAPADIA) 1. These five Criminal Appeals, under Section 374 of the Code of Criminal Procedure (“the Code” for short) are directed against the judgment and CR.A/747/2002 3/85 JUDGMENT order dated 19.08.2002 rendered in Sessions Case No. 67 of 2001 by the learned Additional Sessions Judge, Court No.7, Ahmedabad City, by which the Appellant of all these Appeals, who are original Accused Nos. 1, 2, 4, 5 and 6 respectively (A-1, A-2, A-4, A-5, A-6, for short) are convicted for commission of offences punishable under Sections 489A, 489B, 489C read with Section 120B of the Indian Penal Code (“IPC” for short), and all of them are sentenced to suffer imprisonment for life and fine of Rs.3000/- i.d. RI for 3 months for commission of the offence punishable under Section 489A IPC, imprisonment for life and fine of Rs.3000/- i.d. RI for 3 months for commission of the offence under Section 489B IPC, RI for 5 years and fine of Rs.1500/- i.d. RI for 1 ½ months for the offence under Section 489C IPC and RI for 6 months and fine of Rs.1000/- i.d. RI for 2 months for commission of the offence punishable under Section 120B IPC. It is also ordered that all the sentences, imposed upon the accused persons, shall run concurrently. CR.A/747/2002 4/85 JUDGMENT 2. The prosecution case as disclosed from FIR and unfolded during trial is as under: 2.1. PW-10, Subhashbhai G. Trivedi, Assistant Commissioner of Police, Crime Branch, Ahmedabad City, received a secret information on 1.12.2000 to the effect that one Kavindra @ Kavit Vishnubhai Panchal was to pass in the afternoon from Vasna via Anjali Cinema through Dharnidhar Derasar (Jain Temple) with fake currency notes of the denomination of Rs.500 to put the same in circulation. After receiving the said information, he summoned Police Officers, namely, PW-11, R.C.Pathak – PI, J.D.Chudasama, Dhananjay Waghela and D.H.Goswami and other police personnel and informed them of the information so received and directed R.C.Pathak, PI to summon panchas, and after arrival of the panchas, the panchas were also informed about the information so received, and their consent to act as panchas was also taken and thereafter preliminary panchnama was prepared. It is also the case of the prosecution that between 3:00 p.m. and 3:30 CR.A/747/2002 5/85 JUDGMENT p.m., the preliminary panchnama was prepared and at 3:30 p.m., all the police officers along with the panchas left the office in a Government vehicle and reached near Anjali Cinema, and after hiding the vehicles, from the crossroad, they walked towards Dharnidhar Derasar (Jain Temple) and after walking about 200 steps, all the persons got scattered and took their position as decided earlier. PW-10, ACP, had an information that Kavit Panchal was to come on that road on LML Vespa Scooter bearing registration No. GJ-1- AA-871, and therefore, all the persons were keeping vigil and the vehicles were checked, during which time the aforesaid Scooter was seen coming from Anjali Cinema towards Dharnidhar Derasar about 4:15 p.m., and on spotting the said vehicle, by giving the signal to the members of the raiding party, PW-10, ACP, and panchas cordoned the scooter driver. After introducing himself, the name and address of the said Scooter driver was inquired, who informed his name to be Kavit alias Kavindra Panchal and on carrying out the search in the presence of the panchas, from CR.A/747/2002 6/85 JUDGMENT the pocket of his trouser one bundle of currency notes of the denomination of Rs.500 was recovered and as the said person had tucked his shirt inside his trouser, 6 bundles of currency notes of the denomination of Rs.500 were recovered from a plastic bag and said notes were found to be fake and the said fact was also stated by the said person Kavit Panchal. These 800 notes and another cash of Rs.205/-, one pager of Motorola Company and one Mobile phone were also recovered from the person. An inquiry about the name and address of the person from whom he had acquired the packet of currency notes was made. Thereafter those currency notes were put in a plastic bag and the plastic bag was sealed wherein a note containing the signatures of the panchas was also kept. Seal of Inspector of Police, DCB Crime, Ahmedabad City was affixed and the Scooter, pager and mobile phone were also seized and a detailed panchnama was made later on. The complaint was given by PW-1, Devendragiri Himmatgiri Goswami, before R.C.Pathak, PI. CR.A/747/2002 7/85 JUDGMENT 2.2. It is the further case of the prosecution that on interrogation of A-1, Kavindra, he had taken the police officials to Aastha Surgical Hospital at Vasna Circle and showed a person to R.C.Pathak, PI and on inquiring the name and address of the said person, he stated his name to be Manish Dinkerrai Trivedi (A-2). On making inquiry from him, he took out a bundle of currency notes of the denomination of Rs.500 from his trouser and the same was seized for investigation and thereafter the special room was also searched in presence of the panchas. It is further case of the prosecution that on the strength of the information received by the police officials, the members of the raiding party raided Bungalow No. 3/A of Moti Sagar Society, Near Shantivan on 2.12.2000 and in the passage of the lobby of the said building, three persons were found enjoying liquor party and in the drawing room two persons named Kishoresinh Jashwantji Jadeja (A-3) and Kesrisinh CR.A/747/2002 8/85 JUDGMENT Rathod (A-4), were present and they were informed by R.C.Pathak, PI, about the arrest of A-1, Kavit Vishnu Panchal and A-2, Manish Trivedi, with fake currency notes of the denomination of Rs.500. During the course of the inquiry, A-4, Kesrisinh Rathod, voluntarily took the raiding party to the first floor of his house and by opening the cupboard of the personal room, took out 10 bundles of currency notes of the denomination of Rs.500, containing 990 notes amounting to Rs.4,95,000/- were recovered. On carrying out the search of the person of Kishoresinh, a mobile phone of Nokia Company was also recovered but no other incriminating article was recovered and the panchnama giving all the necessary details was prepared in presence of panchas. An offence for consumption of liquor was also registered. 2.3. It is the further case of the prosecution that during the course of investigation, A-5, Noor Mohmed alias Yakub Saiyed, was arrested on 6.12.2000, A-6, Shambhubhai Desai, was arrested on 10.12.2000 and Shambhubhai voluntarily took CR.A/747/2002 9/85 JUDGMENT out two bundles of fake currency notes of the denomination of Rs.500 which were seized. 2.4. A complaint for the aforesaid incident was lodged by PW-1, Devendragiri M. Goswami, at DCP Police Station, Ahmedabad against all the accused persons. 2.5.During the course of investigation, it was revealed that A-5, Noor Mohmed @ Bhaiyya and the absconding accused Bhavsinh Rathod are convict prisoners undergoing sentence at Central Jail, Sabarmati, Ahmedabad. Both of them were taken to Civil Hospital for treatment. They met A-3, Kishoresinh Jashwantsinh Jadeja, A-4, Kesrisinh @ Kishoresinh Bhavsinh Rathod and the absconding accused Salim Noor Mohmed in Civil Hospital, and hatched conspiracy to circulate fake currency notes of the denomination of Rs.500. In furtherance of the conspiracy, the absconding accused Salim Noor Mohmed obtained fake currency notes of the denomination of Rs.500 and gave them CR.A/747/2002 10/85 JUDGMENT to A-4, Kesrisinh @ Kishoresinh Bhavsinh Rathod and A-3, Kishoresinh Jadeja, who in turn gave them to A-2, Manish Dinkerrai Trivedi, who in turn, gave the same to A-1, Kavit and A-1, Kavit in turn gave the same to A-6, Shambhubhai. During the course of investigation, the fake currency notes recovered from the accused under the panchnama were sealed and then sent to FSL for analysis. On receipt of FSL report indicating that all the currency notes were fake and as incriminating evidence was found against all the accused, charge sheet was filed against all the accused persons for commission of the offences punishable under Sections 489-A, 489B, 489C read with Section 120B IPC in the Court of learned Metropolitan Magistrate, Court No.11, Ahmedabad. 2.6. As the offences with which accused persons were charged are exclusively triable by the Court of Sessions, the learned Metropolitan Magistrate committed the case to the Sessions Court of Ahmedabad City. CR.A/747/2002 11/85 JUDGMENT 2.7. On committal, the learned Additional Sessions Judge, Ahmedabad City, to whom the case was made over for trial, framed charge against all the accused for commission of the offences punishable under Sections 489A, 489B, 489C read with Section 120B IPC. All the accused persons pleaded not guilty to the charge and claimed to be tried. Therefore, they were put to trial by the learned Additional Sessions Judge, Ahmedabad City in Sessions Case No. 67 of 2001. 2.8. In order to bring home the charge levelled against the accused, the prosecution has examined as many as 12 witnesses and relied upon their oral testimonies, the details of which have been narrated in first part of paragraph 2 of the impugned judgment and order. They are as under: PW No. Name and Status Exhibit Page No. 1 Devendragiri H. Goswami, Police Officer 29 95 2 Rushiraj B. Bhavsar, Panch witness 43 117 CR.A/747/2002 12/85 JUDGMENT PW No. Name and Status Exhibit Page No. 3 Arunbhai Shantilal, Panch witness 44 123 4 Jayantilal K. Patel, Panch Witness 45 129 5 Kiritbhai B. Patel, Panch Witness 46 133 6 Rajubhai L. Waghela, Panch witness 47 137 7 Nimesh C. Shah, Panch witness 48 141 8 Dhananjaysinh S. Waghela, Police Officer 49 145 9 Vinay B. Bharwad, Panch witness 51 167 10 Subhashbhai G. Trivedi, Police Officer 57 173 11 Rajeshkumar C. Pathak, Police Officer 66 195 12 Mayankkumar M. Jani, Scientific Officer, FSL, Ahmedabad. 78 249 2.9. To prove the culpability of the accused, the prosecution has also produced a number of CR.A/747/2002 13/85 JUDGMENT documents and relied upon the contents of the same, the details of which are mentioned in second part of paragraph 2 of the impugned judgment. The relevance of those documents would be discussed hereinafter in this judgment as and when required. 2.10. After recording of the evidence of the prosecution witnesses was over, the trial Court explained to the accused the circumstances appearing against them and recorded their further statements under Section 313 of the Code. In their further statements, the accused denied the case of the prosecution in its entirety. They have stated that a false case has been filed against them and no fake currency notes were recovered from them. However, they have neither produced any evidence nor did they examine any witness in support of their defence. 2.11. On appreciation, evaluation, analysis and scrutiny of the evidence on record, the trial Court has come to the conclusion that the prosecution has successfully established the CR.A/747/2002 14/85 JUDGMENT complicity of all the accused except A-3. The prosecution has established that the notes which were recovered from A-1, A-2, A-4 and A-5 were fake currency notes. It was also held that all the accused except A-3, hatched a conspiracy to circulate the fake currency notes of the denomination of Rs.500 and in furtherance of the conspiracy, they have circulated the currency notes from one accused to another and thereby tried to put the fake currency notes in circulation in public, and therefore, the prosecution has established the complicity of all the accused except A-3 for commission of the offence punishable under Sections 489A, 489B, 489C read with Section 120B IPC, and all the accused except A-3 have been convicted and sentenced of the said offences accordingly, to which the reference is made in earlier paragraph of this judgment, which has given rise to the instant five Criminal Appeals at the instance of A-1, A-2, A-4, A-5 and A-6. 3. Messrs Dharmesh D. Nanavati, Jal Soli CR.A/747/2002 15/85 JUDGMENT Unwala, J.M.Panchal and Adil Mehta, learned advocates appearing for the respective accused have raised several contentions, which are summarized as under: (i) Independent witnesses have not supported the prosecution case and only on the basis of the evidence of police officers conviction has been recorded and, therefore, close scrutiny is required. (ii) Evidence of police officers should be of sterling nature which would inspire confidence in the court. (iii) Police officers have not discharged their duties properly inasmuch as there is no investigation nor any evidence to show the source, base or the roots of counterfeiting the muddamal notes. (iv) Investigating Agency has been satisfied only with the possession of counterfeit notes which cannot attract provisions of Section 489A and 489B IPC. CR.A/747/2002 16/85 JUDGMENT (v) There is no evidence regarding the meeting of minds to bring home conspiracy and, therefore, also the investigation cannot be said to be above board and evidence of police officers cannot be said to be of sterling nature. (vi) The investigation also does not reveal any source or base or root of the entire case nor does it show any evidence as to from where the whole case originated and as to where did the counterfeiting take place. (vii) Against the A-5 there is no charge of conspiracy or possession of fake currency notes. (viii) With regard to the evidence regarding Section 120B IPC - conspiracy, except for the confessional statements of the accused, when in custody, there is no evidence worth the name to prove conspiracy. (ix) In the cross examination of P.W.11, CR.A/747/2002 17/85 JUDGMENT RC Pathak, PI, Ex.66, page 195 of the paper book, the police officer has stated that the evidence of conspiracy could come out only during the interrogation in custody and, therefore, the same is hit by Section 26 of the Indian Evidence Act, which cannot be admissible into evidence. (x) The incident has taken place on 1.12.2002 and the muddamal has been sent to FSL on 28.12.2002 and in the meantime, there is no evidence to suggest that the muddamal was in safe custody and has not been tampered with and no witnesses have been examined with respect to the same. (xi) As far as A-2 – Manish Dinkerrai Trivedi is concerned, there is no evidence on record to suggest any involvement in conspiracy for counterfeiting the currency notes nor is there any evidence to suggest the circulation of the said counterfeited notes. In that view of the matter also, he could not have been convicted under Sections CR.A/747/2002 18/85 JUDGMENT 489A and 489B IPC. With respect to Section 489C IPC also, the entire story put up by the prosecution against the A-2 is not believable since he was admitted in the hospital and had undergone a surgery on the leg which has been brought on record from the evidence of PW-9, Ex.51, at page 167, which substantiates the say of A-2. It is highly unbelievable that A-2, though operated just a day before, would be carrying the muddamal notes under his pant in the hospital after his operation. (xii) As far as A-6 is concerned, he has been found in possession of certain torn muddamal currency notes and that too after 10 days and in this view of the matter also, it is highly unbelievable that a person would keep torn counterfeit currency notes with him which would be of no use to him. (xiii) As far as the conviction under Section 489B IPC is concerned, except for the statement of the accused, there is nothing on record to bring home the guilt and, CR.A/747/2002 19/85 JUDGMENT therefore, also the accused could not have been convicted for the offence under Section 489B IPC. (xiv) Even with regard to the conviction for the offence under Section 120B IPC, there is no evidence on record except for the evidence in the nature of confessional statements of the accused. (xv) Even the panch witnesses who have carried out the panchnamas have not supported the prosecution case which suggest the nature of investigation carried out by the investigating agency and the nature of evidence sought to be produced on record to bring home the guilt of the accused for the offences for which they have been convicted. If the confessional statements in the panchnamas cannot be admissible into the evidence in view of Sections 25 and 26 of the Indian Evidence Act, then nothing remains especially when the very same panchnamas have not been proved by the prosecution. CR.A/747/2002 20/85 JUDGMENT (xvi) The trial Court has wrongly taken the aid of Section 10 of the Indian Evidence Act to bring home the guilt of the accused but has very glaringly erred by not appreciating that the provisions of Section 10 of the Indian Evidence Act cannot be taken recourse of if the accused are arrested. 3.1. In support of the aforesaid contentions, they have relied upon two reported decisions of the Supreme Court in the case of (i) State (N.C.T. of Delhi) v. Navjot Sandhu, AIR 2005, SC, 3820 and (ii) State of Gujarat v. Mohammed Atik and others, AIR 1998 SC 1686. 3.2. On the aforesaid premises, it is submitted that the impugned judgment and order is against the evidence on record, therefore, the same deserves to be quashed and set aside by acquitting all the accused of the offences with which they were charged. They, therefore, urged to allow the appeals. 3.3. In the alternative, it is submitted that CR.A/747/2002 21/85 JUDGMENT if at all this Court comes to the conclusion that fake currency notes were recovered from A-1, A-2, A-4 and A-6, they may be convicted only for the offence punishable under Section 489C, in that case, the maximum punishment prescribed for commission of the offence under Section 489C is R.I. for 7 years and fine, or both. In the instant case, for the offence punishable under Section 489C, the trial Court has imposed RI of 5 years and fine of Rs.1500/- i.d. RI for 1 ½ months, which has been undergone by almost all the accused except Accused No.3. Therefore, all the accused may be convicted for the offence punishable under Section 489C IPC and accordingly conviction recorded against all the accused may be modified by acquitting them of the offences punishable under Sections 489A and 489B IPC and convicting those accused from whom fake currency notes were recovered for the offence punishable under Section 489C. They urged to allow the appeals partly by modifying the order of conviction and sentence. They, therefore, urged to pass appropriate orders in this regard. CR.A/747/2002 22/85 JUDGMENT 4. In counter submission, Mr. R.C.Kodekar, learned APP for respondent-State of Gujarat, has contended that there is voluminous evidence against the accused for commission of offences under Sections 489A, 489B, 489C read with Section 120B IPC as A-5, Noor Mohammad and the absconding accused Bhavsinh Rathod, when they were taken to Civil Hospital for treatment, from Sabarmati Jail, hatched a conspiracy with A-3 and A-4 to process the fake currency notes and put them in circulation and A-1, A-2, A-4 and others were caught red-handed with counterfeit currency notes of the denomination of Rs.500 worth lakhs of rupees. It is also asserted by him that when A- 1, A-2, A-4 and A-6 were found with fake currency notes of the denomination of Rs.500, in bulk, worth lacs of rupees, a presumption may arise under Section 3 of the Evidence Act that they have knowingly performed the act of process the counterfeiting of currency notes, received the fake currency notes knowing fully well that those are fake currency notes and kept possession with them and also circulated them from one accused CR.A/747/2002 23/85 JUDGMENT to another. A-5, Noor Mohmed is the master-mind of the conspiracy though from him no currency notes were recovered. He and the absconding accused Bhavsinh Rathod hatched a conspiracy with all the accused persons to process the fake currency notes and put the same in circulation. According to him, it is true that panchas have turned hostile but the evidence of the police officers, who have no axe to grind against the accused persons, is so glaring and of sterling quality that the deficiency in the prosecution, if the turning of panchas hostile can be called so, has paled into insignificance. Therefore, there is no reason to discard the evidence of the police officers. 4.1. Mr. R.C.Kodekar, learned APP has also pointed out that A-1, A-2, A-4 and A-6 were found in possession of fake currency notes, which is proved by the evidence of police officers and no plausible explanation is coming from them as to where from they have obtained the fake currency notes. Silence on the part of the accused in CR.A/747/2002 24/85 JUDGMENT such circumstances would by itself be a telling circumstance which would weigh against them in the consideration of the prosecution evidence led against them. According to him, prosecution has successfully established the complicity of the accused for commission of the offences punishable under Sections 489A, 489B, 489C read with Section 120B IPC. 4.2. In support of the aforesaid contention, he has relied upon the decision of the Supreme Court in the case of Ponnuswamy v. State, 1995 Cr.L.J, page 2658. 4.3. Mr. Kodekar, learned APP, has also asserted that the offence of counterfeiting currency notes is a crime against the Nation and it will affect the economy of the country adversely and, therefore, no leniency can be shown against any of the accused persons. He has submitted that there is no merit in the appeals filed by the accused and, therefore, same deserve to be dismissed. He, therefore, urged to dismiss all the appeals. CR.A/747/2002 25/85 JUDGMENT 5. This Court has considered the submissions advanced by the learned advocates appearing for the parties and perused the impugned judgment and order. This Court has undertaken a compete and comprehensive appreciation of all vital features of the case and the entire evidence on record which is read and re-read by the learned advocates for the parties with reference to broad and reasonable probabilities of the case. In light of the caution sounded by the Supreme Court while dealing with criminal appeals, this court has examined the entire evidence on record for itself independently of the trial Court and considered the arguments advanced on behalf of the accused persons and infirmities pressed, scrupulously with a view to find out as to whether the trial Court has rightly recorded the order of conviction and sentence. 6. In order to prove that the currency notes recovered from A-1, A-2, A-4 and A-6 were fake, the prosecution has examined and relied upon oral testimony of P.W.12, Mayankkumar M.