Punjab-Haryana High Court
Sukhchain Singh vs Intelligence Officer on 22 May, 2013
Author: K.C.Puri
Bench: K.C.Puri
Criminal Appeal No. S-1404 SB of 2010 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No. S-1404 SB of 2010
Date of decision 22 .05.2013.
Sukhchain Singh
...... Appellant.
versus
Intelligence Officer, Amritsar
...... Respondent.
Present :- Mr. Veneet Sharma, Advocate for the appellant.
Mr. D.D.Sharma, Advocate for the respondent.
Criminal Appeal No. S-1613 SB of 2010
Harpal Singh
...... Appellant.
versus
Intelligence Officer, Amritsar
...... Respondent.
CORAM :- HON'BLE MR.JUSTICE K.C.PURI.
Present :- Mr. Vipul Jindal, Advocate for the appellant.
Mr. D.D.Sharma, Advocate for the respondent.
K.C.PURI, J.
By this common judgment, I intend to dispose of Criminal Criminal Appeal No. S-1404 SB of 2010 2 Appeal No. S-1404 SB of 2010 titled as Sukhchain Singh versus Intelligence Officer, Amritsar and Criminal Appeal No. S-1613 SB of 2010 titled as Harpal Singh versus Intelligence Officer, Amritsar as both these appeals have arisen out of the same judgment and incident. For convenience facts are being taken from Criminal Appeal No. S-1404 SB of 2010 titled as Sukhchain Singh versus Intelligence Officer, Amritsar.
2. The case of the complainant/prosecution in brief is that complaint under section 11 and 135 of the Customs Act, 1962 and Sections 489-B, 489-B, IPC read with notification. No. 23/99 Customs (N.T.) dated 13.4.1999 issued under section 11 of the Customs Act, 1962 and section 25, 54 and 59 of Arms Act, 1959 has been filed against the accused/appellants.
3. It has been alleged that acting upon a specific information that smuggled Fake Indian Currency and pistols are being lying in a Mahindra Tractor trolley bearing no registration number, officers of Directorate of Revenue Intelligence, on 12.10.2008, intercepted the said vehicle opposite Sunny Filling station just next to New Grain Market outside Bhagtanwala, which was coming from Naushehra Dhalla side to Amritsar side and was being driven by one person namely Harpal Singh son of Labh Singh, resident of Naushehra Dhalla, District Amritsar and one boy namely Gurjant Singh was also sitting on the left mud guard of the tractor. As the place of interception was not safe for carrying out search of person/tractor trolly, they were escorted to Directorate of Revenue Intelligence office, situated at M-1/C, Green avenue Amritsar alongwith the said tractor trolley. Criminal Appeal No. S-1404 SB of 2010 3 As a result of personal search of Harpal Singh carried out in the presence of independent witnesses namely Surjit Singh and Rajesh Kumar, nothing objectionable was recovered from him. However, one mobile phone of Nokia Brand with mobile No. 9914977831 was recovered. Thereafter, search of tractor trolley was carried out in the presence of aforesaid independent witness and also in the presence of Harpal Singh, which resulted into the recovery of one secret cavity in the tool box of tractor trolley. On opening the said secret cavity, one black coloured polythene bag containing five packets wrapped with yellowish adhesive tape was recovered. In addition, five pistols looking like pistol articles wrapped with adhesive tape were also recovered, the aforesaid articles were brought inside the office for further examination in the presence of independent witnesses and Harpal Singh. On opening the bag, five bundles wrapped with adhesive tape were recovered. On opening, one bundle containing two packets and other four bundles containing five packets each in all 22 packets were recovered. These bundles were given serial no. 1 to 22. On counting, the total fake Indian Currency having face value of Rs.11Lakhs were recovered. Thereafter, all the 22 white envelopes containing Fake Indian Currency were put in one yellow envelope, which was wrapped in white cloth and sealed with the seal of Directorate of Revenue Intelligence, Amritsar, over a paper slip bearing signatures of panches and the DRI Officer and thumb of Harpal Singh. Packing material was put in a yellow envelop and sealed with the seal of above referred seal, over a paper slip bearing signatures of panchas and the DRI officer and thumb impression of Harpal Singh. The Criminal Appeal No. S-1404 SB of 2010 4 DRI Officer seized the recovered Indian Fake currency notes under section 110 of the Customs Act, 1962, on the reasonable belief that the same has been smuggled into India, as Harpal Singh could not produce any documentary evidence for the legal possession of the same. The above mentioned five pistols, 10 magazines were put in a cardboard box and wrapped in white cloth were also sealed with the seal in the same manner and signed by above witnesses including DRI and thumb impression of Harpal Singh, DRI also seized the above mentioned Five pistols and 10 magazines under section 110 of the Customs Act and provisions of Arms Act, on the belief that the same has been smuggled into India by Harpal Singh for which he could not produce any documentary evidence for possession of the same. The above mentioned red coloured Mahindra tractor-trolley without registration number was also seized under the provisions of Customs Act, for having been used in the transportation of the Fake Indian Currency and pistols. DRI Officer also prepared site plan of interception of the above tractor trolley. Gurjant Singh son of Harpal Singh being a minor and innocent and having no knowledge of the activities of his father was allowed to go.
4. Voluntary statement of Harpal Singh-accused was recorded on 12.10.2008 under the provisions of section 108 of the Customs Act, 1962, in which Harpal Singh inter alia admitted the recovery of Fake Indian Currency and five pistol alongwith 10 magazines from him and further admitted that he was doing this job on the instructions of one Sukhchain Singh, resident of village Khrmania District Amiritsar and further stated that Criminal Appeal No. S-1404 SB of 2010 5 said Sukhchain Singh was known to his father and used to visit a Dargah Baba Jallan Shah situated at his village Noushehra Dhalla and he also used to visit the said dargah almost daily to pay his obeisance there, he used to met said Sukhchain Singh. Some time in the month of August 2008 he met Sukhchain Singh at Gurdwara Baba Sahib Amritsar, there Sukhchain Singh asked him that whether he would do the job of collecting fake Indian Currency sent from across the border fencing and delivering the same to him which he agreed. Harpal Singh gave his mobile phone No. 9914977831 to Sukhchain Singh. On receiving a call from Sukhchain Singh, Harpal Singh met him at Bus stand Amritsar after selecting a safe place Harpal Singh informed Sukhchain Singh about the place so selected situated at a distance of about 2 KM from his village towards village Havellian. He also informed Sukhchain Singh that there was a Shisham tree near that place. In the third week of September, 2008 Sukhchain Singh asked Harpal Singh to reach the selected placed at about 2 A.M. and to collect the consignment of FICN thrown from across the border fencing. He instructed him ( Harpal Singh ) to throw some articles across the fencing after reaching there. A person from across the fencing would throw the FICN from across the fencing on hearing the noise created by thrown some articles. Harpal Singh acted accordingly and after reaching the selected place he, threw a lump of hard soil across the fencing. On hearing the sound of said lump of soil, a person appeared on the other side of fencing. He disclosed his name as Abdul Rafiq Pak National and accomplice of Sukhchain Singh. Abdul Rafiq threw a bundle of FICN from across the fencing and the same was Criminal Appeal No. S-1404 SB of 2010 6 collected by him. After collecting the same he ( Harpal Singh ) reached his house and informed Sukhchain Singh about the same. Sukhchain Singh asked him to came to dana Mandi Bhagtanwala, Amritsar next day early in the morning which he did and delivered the said consignment to Sukhchain Singh and received INR 1,25,000/- in lieu of same. Harpal Singh disclosed that the said consignment was of Rs.25lakhs. He further stated that the same process was repeated again after a week and a consignment of Rs.25 Lakh FICN was delivered to Sukhchain Singh. On both the occasions, harpal Singh transported FICN in his red coloured Mahindra tractor bearing no registration number. Harpal Singh further stated that since he knew that he had to do this job regularly he made secret cavity inside the tool box fixed to the trolley of his tractor to avoid detection. He further stated that Sukhchain Singh who was also known as Chaina asked him to reach the spot on the border on 10/11.10.2008 at the same time and collect FICN along with five nails, which mean five pistols thrown from across the border fencing by Abdul Rafiq and brought the same to his house. He started for Dana Mandi, Amritsar early in the morning next day after keeping the FICN and five pistols in the specially made cavity in the tool box affixed to the trolley alongwith his minor son to avoid detection but was intercepted by the officer of DRI in plain clothes near Sunny Filling Station just a short distance away from Dana Mandi. The said FICN and five pistols, ten magazines were seized by the officers for further action.
5. Thereafter, in response to the summons issued to Sukhchain Singh, he appeared on 15.4.2009 before the DRI authorities. Criminal Appeal No. S-1404 SB of 2010 7
6. In his voluntary statement dated 15.4.2009 recorded under the provisions of section 108 of the Customs Act; 1962, Sukhchain Singh stated that he remained in Central Jail, Amritsar from 1999 to 2006 for his involvement in a case of Arms-Ammunitions booked by. Punjab Police. One Pakistani namely Alla Ditta met him there in Jail and they became good friends. Before leaving the jail after completing his sentence, Alla Ditta gave him his telephone number, which he did not remember now and also told him that he was a smuggler. Due to weak financial position of his family, Sukhchain Singh thought of talking to Alla Ditta. He talked to him and told him about his condition, Alla Ditta told him that he was ill and he spoke to his nephew Bashir. Bashir told Sukhchain Singh to prepare an accomplice, who could bring the fake Indian Currency for him from across the border sent by him. Then Sukhchain Singh spoke to Harpal Singh as his house was quite near the fencing. Sukhchain Singh further stated that as per his instruction, Harpal Singh selected a place between Naushehara Dhalla and havellian. Thereafter, Bashir told Sukhchain Singh that on 11.10.2008 at 2.00 hours, a man namely Abdul Rafiq would come and throw 11 lakhs of Fake Indian Currency and five pistols over the fencing from Pakistan side. Sukhchain Singh called Harpal Singh telephonically and discussed with him, about the entire strategy and Rs. 90,000/- was settled to be paid to him for the said job. On 11.10.2008, Harpal Singh told Sukhchain Singh that he had come from, border and brought his goods. On the next day, Sukhchain Singh reached Dana mandi Bhagtanwala, but Harpal Singh did not reach there. Sukhchain Singh went to his home after waiting for Harpal Singh. Criminal Appeal No. S-1404 SB of 2010 8 Sukhchain Singh came to know later on that Harpal Singh was apprehended by the DIR along with goods. On being asked, Sukhchain Singh further stated that Rs.11lakhs Fake Indian Currency and 5 pistols were to be given to Bashir's man at Amritsar, but he did not know the person to whom the goods were to be given as Bashir had to send that person to Sukhchain Singh and Rs.2,00,000/- were to be paid to Sukhchain Singh by that person after receiving the goods from him.
7. In follow up action, search of residential premises of Harpal Singh, was conducted on 12.10.2008 by the officers of Customs (Prey), Amritsar and nothing incriminating was recovered. Accused Harpal Singh was place under arrest on 12.10.2008. The necessary formalities regarding production of the accused and case property before the court, the seized currency was got examined from Currency Note Press, nasik. Sukhchain Singh alias Chaina was apprehended by the Special narcotic Cell, Punjab Police, Amritsar and Fake Indian Currency of Rs. 5,00,000/- was seized from him, and a case against Sukhchain Singh alias Chaina was registered by the police of Police Station Sultanwind, Amritsar vide FIR No. 209 dated 26.10.2008 under section 489 ABC. After completion of all other investigations and necessary formalities, the department filed the complaint.
8. On presentation of the complaint, copies of the documents relied upon by the prosecution were supplied to the accused. Charge in this case was framed against accused Harpal Singh under sections 489-C, 489-B of IPC, 25 of the Arms Act and under section 135 of the Customs Act 1961 by Sh. Karnail Singh, learned Addl. Sessions Judge, Amritsar, on 1.4.2009, Criminal Appeal No. S-1404 SB of 2010 9 to which the accused pleaded not guilty and claimed trial.
9. It is pertinent to mention here that after the framing of the charge, supplementary complaint qua accused Sukhchain Singh was presented, which was committed by the Court of learned CJM, Amritsar, vide order dated 30.7.2009 to the Court of Sessions, which was entrusted to the court of learned Additional Sessions Judge, on 25.8.2009 and was ordered to be consolidated and clubbed with the present main complaint, thereafter, charge was re-framed against both the accused under sections 489-C, 489-B, 120-B, 34 of IPC, 25 of Arms Act and 135 of Customs Act, to which the accused pleaded not guilty and claimed trial.
10. In order to prove its case, the prosecution examined PW-1, Paramjit Singh Inspector, Customs freight Station, Ludhiana, PW-2, Maninderjit Singh Inspector, PW-3 R.K.Saini, Intelligence Officer, Amritsar, PW4 Kanwardeep Singh, PW-5 Ramesh Sharma, Senior Intelligence Officer, DRI, Amritsar and closed its evidence.
11. After closure of the prosecution evidence, statements of the accused under section 313 Cr.P.C. were recorded wherein all the incriminating evidence was put to them but they denied all the allegations of the prosecution. Plea taken by accused Harpal Singh is as under:-
"On 12.12.2008 Revenue Intelligence department raided his house early in the morning and took him in custody alongwith his son Gurjant Singh. Both of them were brought to custom office and after some time his son was released but he was falsely implicated in this case. Complainant had also taken his Criminal Appeal No. S-1404 SB of 2010 10 thumb impression on blank papers under pressure. Sukhchain Singh co-accused was not known to him nor he had contacted with any Allah Ditta of Pakistan. Neither the trolley nor the tractor nor the articles recovered from said tractor trolley belong to him. He has been falsely implicated in this case.
12. Plea taken by accused Sukhchain Singh is as under:-
"On 15.4.2009, in another case in which he was on ball had come to judicial complex Amritsar to attend the court in the said case and when he became free from the court, he was taken into custody by the revenue Intelligence Department and taken to their office at Amritsar and was falsely implicated in this case. His signatures were taken on blank papers by complainant falsely when he was in their custody. He had nothing to do with the contraband allegedly shown recovered from Harpal Singh or with the tractor trolley from which it is shown recovered. He did not know Harpal Singh nor any Allah Ditta and Bashir and any other smuggler from Pakistan. His statement was dictated by the DRI Officer, under coercion, allurement and with the promise to let him free. He has not concern with alleged statement. He has already filed a retraction from the Central Jail Amritsar.
13. The trial Court after hearing the learned counsel for the parties vide judgment and order dated 15.5.2010, convicted and sentenced accused Criminal Appeal No. S-1404 SB of 2010 11 Harpal Singh to undergo RI for seven years and to pay a fine of Rs.2500/- and in default of payment of fine to undergo RI for five months under Section 120-B of the IPC ; to undergo RI for seven years and to pay a fine of Rs.2500/- and in default of payment of fine to undergo RI for five months under Section 489-B of the IPC ; to undergo RI for seven years and to pay a fine of Rs.2500/- and in default of payment of fine to undergo RI for five months under Section 489-C of the IPC ; to undergo RI for seven years and to pay a fine of Rs.2500/- and in default of payment of fine to undergo RI for five months under Section 25 of the Arms Act and to undergo RI for seven years and to pay a fine of Rs.2500/- and in default of payment of fine to undergo RI for five months under Section 135-C of the Act and Sukhchain Singh accused to undergo RI for seven years and to pay a fine of Rs.2500/- and in default of payment of fine to undergo RI for five months under Section 120-B of the IPC ; to undergo RI for seven years and to pay a fine of Rs.2500/- and in default of payment of fine to undergo RI for five months under Section 489-B of the IPC ; to undergo RI for seven years and to pay a fine of Rs.2500/- and in default of payment of fine to undergo RI for five months under Section 135-C of the Act. However, all the sentences were ordered to run concurrently.
14. Feeling dissatisfied with the aforesaid judgment and order dated 15.5.2010, the present separate appeals have been preferred by the accused/appellants.
Criminal Appeal No. S-1404 SB of 2010 12
15. I have heard learned counsel for the parties and have gone through the records of the case with their able assistance.
16. Learned counsel for the appellants have submitted that prosecution has failed to prove the ownership of the tractor-trolley from where alleged recovery of fake currency notes and pistol has taken place. The said tractor-trolley belongs to one Sandhu farm. Harpal Singh and Sukhchain Singh have been falsely implicated in the present case.
17. I have carefully considered the said submission but do not find any force in that submission. Harpal Singh was apprehended along with currency notes of valuing Rs.11lacs and the pistols. There was no reason for the prosecution to falsely implicate the appellants in recovery of such a huge amount of fake currency notes and in respect of weapons. Non- proving of the ownership does not affect the case of the prosecution.
18. Learned counsel for the appellants have further submitted that according to the case of the prosecution one Alladitta has thrown the fake currency notes and weapons across the Border on 12.10.2008. It is further case of the prosecution that accused/appellants have conversation with said Alladitta on telephone. However, no record in this regard was produced by the prosecution and as such the prosecution story is doubtful.
19. I have carefully considered the said submission but do not find any force in that submission. The story of conversation on phone with Alladitta of Pakistan has been narrated by both the accused in their statement recorded under Section 108 of the Customs Act, 1962. The recovery of such a huge amount of fake currency notes and weapon cannot Criminal Appeal No. S-1404 SB of 2010 13 be planted, mere non-production of record does not create doubt in the prosecution. Moreover, this fact was in specific knowledge of the accused. Sometimes the modus operandi of the smugglers is that they destroyed the sim after using the same for a specific purpose. So, that fact does not affect the case of the prosecution.
20. The learned counsel for the appellants have further submitted that Harpal Singh accused was in custody and as such any statement made by him during the period of custody is hit by the principles of Section 25, 26 and 27 of the Indian Evidence Act. Any confession made by the accused before police officer in police custody is inadmissible in evidence.
21. I have carefully considered the said submission but do not find any force in that submission. The statement made by any person under Section 108 of the Customs Act is admissible. The Parliament in its wisdom has given the power to record statement under Section 108 of the Customs Act to a Gazetted Officer alone. It was within the knowledge of framer of law in respect of Sections 25 and 26 of the Indian Evidence Act. According to Section 108 of the Customs Act, 1962 clause (iv) every inquiry made under Section 108 of the Customs Act, 1962 shall be deemed to be a judicial proceedings within the meaning of Sections 193 and 128 of the IPC. So, Section 27, 25 and 26 of the Evidence Act, will not help the case of the accused/appellants in any manner.
22. Learned counsel for the appellants have further submitted that the recovery of pistol and fake currency notes do not fall within the ambit of Section 101. So, the recovery of fake currency notes do not come within the Criminal Appeal No. S-1404 SB of 2010 14 domain of Section 11 and 135 of the Customs Act, 1962.
23. I have carefully considered the said submission but do not find any force in that submission.
24. In order to properly appreciate the said argument Section 101 of the of the Customs Act, 1962 is reproduced as under :-
"101. Power to search suspected persons in certain other cases.-
(1) Without prejudice to the provisions of section 100, if an officer of customs empowered in this behalf by general or specific order of the [ Commissioner of the Customs] has reason to believe that any person has secreted about his person any goods of the description specified in sub-section (2) which are liable to confiscation, or documents relating thereto, he may search that person.
(2) The goods referred to in sub-section (1) are the following :-
(a) gold ;
(b) diamonds;
© manufactures of gold or diamonds ;
(d) watches ;
(e) any other class of goods which the Central Government may, by notification in the Official Gazette, specify ;"
25. So from the perusal of clause 101(2)(e) of the Customs Act, 1962 other class of goods which the official gazette specify can be searched by the custom officer. The counsel for the State has rightly argued that recovery of fake currency notes fall within the ambit of notification. Criminal Appeal No. S-1404 SB of 2010 15
26. Learned counsel for the appellant-Sukhchain Singh has submitted that appellant Sukhchain Singh has retracted the confession at the earliest occasion. Statement under Section 108 of the of the Customs Act, 1962 is stated to have made by Sukhchain Singh on 15.4.2009. real facts are that Sukhchain Singh on 15.4.2009 has gone to attend the Court of Shri Vikrant Kumar, Judicial Magistrate Ist Class, Amritsar. He was taken to a private kothi and after giving beating his statement was recorded. The petitioner moved application on 5.5.2009 Ex.DW-2/A retreating the confession. So that confession cannot be read against appellant Sukhchain Singh. There is no other evidence against Sukhchain Singh. Sukhchain Singh was not arrested from the spot along with fake currency notes and weapon. No record has been produced. So, in these circumstances, learned trial Court has wrongly relied upon statement under Section 108 of the Customs Act, 1962 against the appellants
27. I have carefully considered the said submission but do not find any force in that submission.
28. Sukhchain Singh was not in custody on 15.4.2009. The application was moved by Sukhchain Singh only on 5.5.2009 i.e. after more than twenty days. So, it cannot be said that Sukhchain Singh has retracted the confession at the first occasion. It cannot be believed that Custom Officer will record the statement of Sukhchain Singh after giving any beating. In Ex.DW-2/A impliedly making statement is admitted by mentioning that he should write whatever they state. The statement of Sukhchain Singh is stated to be in his hand and such a long statement Criminal Appeal No. S-1404 SB of 2010 16 cannot be said to be the result of threat or misrepresentation.
29. Learned counsel for the appellants have further submitted that as per the allegations of the prosecution on the asking of Harpal Singh the tractor trolley along with Gurjant Singh and two witnesses namely Surjit Singh and Rajesh Kumar, were joined. On the search one secret cavity in the tool box of tractor trolley containing five packets of fake currency and five pistols were recovered. The said recovery memo is not signed by PW-5 Ramesh Sharma Senior Intelligence Officer but only was signed by PW-3 R.K.Saini investigation officer. The said two witnesses were not examined in the Court.
30. I have carefully considered the said submission but do not find any merit in the said submission.
31. The independent witnesses normally do not come forward as he/she does not want to buy enmity with the accused. The accused were indulging in smuggling of fake currency notes and pistols which were received from across the border. So, in these circumstances non- examination of independent witness is not fatal for the case of prosecution. Mere fact that recovery memo has not been signed by PW-5 Ramesh Sharma also does not affect the case of the prosecution. The recovery of five pistols and ten magazines and fake currency notes of Rs.11lacks cannot be planted. Even suggestion has not been given to any of the witness for planting such a huge quantity of fake currency notes and pistols.
32. Learned counsel for the appellants have further submitted that statement of the accused Ex.P7 under Section 108 of the Customs Act was Criminal Appeal No. S-1404 SB of 2010 17 recorded by Charanjit Singh. Said Charanjit Singh has not been examined. There is no certificate on the statement that said statement was read over to him.
33. I have carefully considered the said submission but do not find any merit in the said submission.
34. At the end of statement of Harpal Singh under Section 108 of the Customs Act there is a note that said statement has been read over to him and explained in Punjabi the said argument is without any substance.
35. The learned counsel for the appellant has submitted that appellant Harpal Singh was produced before Judicial Magistrate Ist Class on 13.10.2008 and his statement under Section 164 of the Cr.P.C. was not recorded.
36 I have carefully considered the said submission but do not find any merit in the said submission.
37. There is no necessity to record the statement of Harpal Singh under section 164 of the Cr.P.C.
38. Learned counsel for the appellant has further submitted that recovery is stated to have taken place on 12.10.2008 and the information to the police was sent only on 17.11.2008 i.e. after 35 days of the occurrence. So, the prosecution story is doubtful.
39. I have carefully considered the said submission but do not find any merit in the said submission.
40. Counsel for the appellant has himself stated that accused was produced before Judicial Magistrate Ist Class on 13.10.2008. So, in these Criminal Appeal No. S-1404 SB of 2010 18 circumstances, mere fact that information was sent to the police on 17.11.2008 does not create doubt in the prosecution version.
41. Learned counsel for the appellants have submitted that pistol/ magazine were examined by Kanwardeep Singh PW-4 on 22.12.2008, no test fire was conducted and as such the alleged recovery cannot be said to be within the definition of Arms Act.
42. I have carefully considered the said submission but do not find any merit in the said submission.
43. HC Kanwardeep Singh has given his report that pistols in question are in working condition. Said HC Kanwardeep Singh has vast experience and as such the said argument is without any substance.
44. Learned counsel for the appellants has further submitted that in the statement recorded under Section 313 Cr.P.C. of the appellants, no specific question of conscious possession was put. So, the recovery is doubtful.
45. I have carefully considered the said submission but do not find any merit in the said submission.
46. The specific question regarding recovery of currency notes ten magazine and five pistols have been put to the appellants. Harpal Singh appellant has himself got recovered these articles from the special created cavity. The very fact that cavity to smuggle the articles was created goes a long way to prove the conscious possession of the appellants.
47. So far as the reliance of appellant on authority Bhagwan Singh vs. State of Rajasthan reported in 1976 AIR (SC) page 985 is concerned Criminal Appeal No. S-1404 SB of 2010 19 that authority is distinguishable. Official witnesses were not believe on the facts and circumstances of that case. In the present case, the recovery has been taken place in the presence of a Gazetted Officer. There was no reason for false implication of the appellants. The conviction slip of the appellants placed on the file is that both of them have been involved in other cases of same nature regarding recovery of fake currency notes.
48. Authority Megha Singh vs. State of Haryana reported in 1997 (2) RCR (Criminal) page 3 is distinguishable as in that case the recovery was effected by a head constable and the Court comes to the conclusion that head constable being complainant cannot investigate the matter and further in that case recovery of weapon was found to be doubtful.
49. Authority Mohmed Salim vs. State of Haryana reported in 2008 (2) R.C.R. (Criminal ) page 128 (Punjab and Haryana) is distinguishable to the facts of the present case as in that case, a sample was sent 12 days after the recovery and there was non-compliance of Section 55 and other provisions of NDPS Act.
50. Authority Shish Pal vs. State of Haryana reported in 2003 (1) R.C.R. (Criminal ) page 610 is also distinguishable as in that case, there was no direct evidence against the accused for the offence attributed to him. So, under these circumstances, FIR was quashed.
51. Authority State of Punjab vs. Surjit Singh reported in 2008 (1) R.C.R. (Criminal ) page 266 is distinguishable as in that case accused was acquitted for non-compliance of Section 50 of the NDPS Criminal Appeal No. S-1404 SB of 2010 20 Act.
52. Authority Hakam Singh vs. State of Punjab reported in 2008 (4) R.C.R. (Criminal ) page 489 is distinguishable as in that case, owner was not challaned under Section 25 of the NDPS Act as there was no evidence that contraband was being taken in the vehicle owned by him with his consent.
53. Authority Noor Aga vs. State of Punjab and another reported in 2008 (3) R.C.R. (Criminal ) page 633 is distinguishable as in that case, there were number of discrepancies regarding to weight of contraband. Sample and case property was not produced in the Court. So, under those circumstances it was held that the accused cannot be not convicted for an offence under NDPS Act by only believing the statement made under Section 108 of the Customs Act. In the present case there is other evidence available on the file.
54. Authority Union of India vs. Bal Mukund & Ors reported in 2009 (2) R.C.R.(Criminal) page 574 is distinguishable as in that case, five bags each containing 2 kgs opium, sample of 25 grams from each bag was drawn. Sample was mixed and sent to the Laboratory to show that adequate quantity had taken from each bag as per requirement of the law. So, there was non-compliance of mandatory provisions of the Act. Under those circumstances, the accused were acquitted.
55. Authority Ranvir Yadav vs. State of Bihar reported in 2009 (3) R.,C.R. (Criminal ) page 113 is distinguishable as in that case it was held that conviction based on the failure of the accused to explain, what he Criminal Appeal No. S-1404 SB of 2010 21 was never asked to explain under Section 313 of the Cr.P.C, is bad in law. In the present case, it cannot be said that statement under Section 313 of the Cr.P.C., is faulty in any manner.
56. Authority Jaswinder Singh vs. State of Punjab reported in 2009(1) R.C.R. (Criminal ) page 425 (Punjab and Haryana) is also distinguishable as in that case conscious possession of the contraband was not proved.
57. Authority M.Mammutti vs. State of Karnataka reported in 1979 AIR (SC) page 1705 is distinguishable as in that case 99 two rupee notes were recovered. Hon'ble Apex Court in those circumstances held that accused cannot be convicted under Sections 489C and 489B of the Indian Penal Code. In the present case fake currency notes amounting to Rs.11lacks were recovered along with five pistols and ten magazines smuggled from foreign country. So, the facts of that authority are distinguishable with the facts of the present case.
58. Authorities Darshan Singh vs. State of Punjab Criminal Appeal No.181 SB of 2002 decided on 17.2.2011 by this Court and Umashanker vs. State of Chhattisgarh reported in 2001 (4) sCrimes 83 are distinguishable on the same ground.
59. Authority Vijaysinh Chandubha Jadeja vs. State of Gujarat reported in 2011 (1) SCC page 609 by Five Judges Bench of Hon'ble Apex Court is remotely connected to the facts of the present case. In that case there is non-compliance of Section 50 of the NDPS Act which was held to be mandatory.
Criminal Appeal No. S-1404 SB of 2010 22
60. Lastly learned counsel for the appellants have submitted that in case the Court is not inclined to the prayer of acquittal, in that case it is submitted that accused/appellants have already undergone for a sufficient period and their sentence may be reduced to the period already undergone and to support this contention he has relied upon authority Triveni Prasad Ramkaran Verma Vs. State of Maharashtra 1976 AIR SC page 2156.
61. I have considered the said submission but do not find any force in that submission. The authority relates to a smuggling of goods. In the present case the allegations against the appellants is smuggling of fake currency notes of valuing Rs.11lacs and five pistols and ten magazines. The offence complained of can destabilize the country. Some foreign nationals wanted to make the economy of India bankrupt by pumping huge fake currency notes in circulation. So, in these circumstances, no ground for reduction of sentence is made out.
62. Authority Ram Balaf @ Ram Balak Chauhan vs. State of Punjab Criminal Appeal No. S. 2887 SB of 2010 decided on 26.11.2012 by this Court is also distinguishable as in that case, there was no allegation of smuggling currency notes from the foreign country.
63. Hon'ble the Supreme Court in authority Naresh J. Sukhawani vs. Union of India reported in AIR 1996 Supreme Court page 522 held that custom official under Section 108 of the Customs Act has evidentiary value and can be the basis of conviction.
64. In view of the above discussion, there is no merit in the Criminal Appeal No. S-1404 SB of 2010 23 aforesaid appeals and the same stand dismissed.
65. A copy of this judgment be sent to the trial Court for strict compliance.
May 23 , 2013 (K. C. PURI) sv JUDGE