Delhi District Court
Fir No. 356/12 State vs . Syed Mohd. Ali Page 1 Of 21 on 31 May, 2017
1
IN THE COURT OF SH. RAKESH PANDIT,
ASJ-03, NEW DELHI DISTRICT, PATIALA HOUSE
COURTS, NEW DELHI
SC No. 8566/16
FIR No. 356/12
PS : IGI Airport
U/sec.489B/489C IPC
In re :
STATE
Vs.
Syed Mohd. Ali
S/o Sh. Syed Sageer Ali,
R/o I. K. Road, Ali Pur Post,
Gowribidanur, Chikbllapur-562101,
Karnataka. ....Accused
Date of filing of charge sheet : 22.05.2015
Date of framing of charge : 27.02.2016
Date of arguments : 27.05.2017
Date of judgment : 31.05.2017
JUDGMENT
1 By this judgment I will dispose of case of the prosecution FIR No. 356/12 State Vs. Syed Mohd. Ali page 1 of 21 2 based on FIR NO. 356/12, P.S. IGI Airport.
2 The brief facts of the case as per investigation/charge- sheet are that on 06.11.2012, accused came from Iran and arrived at IGI Airport. He was examined by the Customs Officials. During his examination, the officials found 61 currency notes of Rs.1,000/- denomination. On the request of Custom Officials, they were checked by officials of Central Bank of India posted at IGI Airport. Bank informed the Custom Officials that 52 notes are not being accepted by their machine and those notes may be fake. On this the Custom Officials, reported the matter to SHO PS IGI Airport and present FIR was got registered.
During investigation, the notes were sent to FSL Rohini and they found those 52 notes as Fake Indian Currency Notes (FICNs).
After the investigation, charge-sheet was filed.
3 Cognizance of the offences were taken. Accused was provided with the copies of the charge sheet. Matter was committed to Sessions Court. After hearing the arguments on charge, accused Syed Mohd. Ali was charged for the offence u/sec.489(B) IPC & sec.489(C) IPC. Accused pleaded not guilty and claimed trial.
4 To prove its case prosecution examined 9 witnesses.
FIR No. 356/12 State Vs. Syed Mohd. Ali page 2 of 21 3 5 PW1 HC Sanjeev deposed that on 06.11.2012 SI Deepak sent a rukka through Ct. Anil. He registered FIR. He proved copy of the FIR Ex.PW1/A and certificate u/sec.65B IEA as Ex.PW1/C. He made endorsement on the rukka Ex.PW1/B and handed over the same back to Ct. Anil along with copy of FIR. He also proved DD entry no. 13A as Ex.PW1/D. 6 PW2 Dr. Praveen Kumar, Deputy Commissioner, Directorate of Vigilance deposed that on 06.11.2012 he was working as Additional Commissioner of Customs at Terminal T-3, IGI Airport, New Delhi. He had given complaint that accused was found with 52 FICNs of Rs.1,000/- each amount to Rs.52,000/-. He also handed over the copies of relevant documents and goods to SHO. He proved his complaint Ex.PW2/A and annexure B of the complaint as Ex.PW2/B. He also proved punchnama Ex.PW3/A. 7 PW3 Arjun Chander, Superintendent Central Excise deposed that on 06.11.2012 he was posted at the green channel at IGI Airport. At about 11.30-12.00 noon accused arrived and found carrying 2-3 bags with him. He checked and papers. While checking his bags, he found cloth of dutiable quantity. The luggage was scanned. Punchanama was prepared. Apart from these dutiable items, Rs.63,070/- of Indian currency, US Dollar FIR No. 356/12 State Vs. Syed Mohd. Ali page 3 of 21 4 amounting $ 9117 and other currencies were found. Punchnama was prepared. The same were Ex.PW3/A. On further checking 52 currency notes were found as FICNs. Those were seized vide seizure memo Ex.PW3/B. The entire FICNs are proved as Ex.PW3/P1.
8 PW4 Ct. Lalit Kumar proved that on 12.12.2012 he was posted at IGI Airport. On the direction of MHC (M) he took one parcel and deposited with FSL. After depositing the said parcel with FSL, he took a receipt and handed over the same to Malkhana mohrar. No tempering was took place with the parcel during the time it remained with him.
9 PW5 Ajit Singh, Junior Forensic Examiner deposed that on 12.12.2012 he examined 52 Indian Currency Notes. All were found to be fake. He gave his report Ex.PW5/A. 10 PW6 Ct. Anil Kumar deposed that on 06.11.2012, he was posted at PS IGI Airport. On receipt of DD no. 13A, he along with SI Deepak Saini had gone to IGI Airport where they met Arjun Chandra, ACO Customs. He handed over to IO Deepak Saini one passenger Syed Mohd. Ali along with some documents and sealed FICNs. IO interrogated the passenger. Prepared rukka and handed over to him. He got the FIR registered. He came back with the copy of FIR and rukka and handed over to SI Deepak FIR No. 356/12 State Vs. Syed Mohd. Ali page 4 of 21 5 Saini. In his presence, IO Seized and sealed FICNs with the seal of DK. Accused was arrested vide memo Ex.PW6/A. He was personally searched vide Ex.PW6/B. Accused gave disclosure statement Ex.PW6/C. The passport of the accused was seized vide seizure memo Ex.PW6/D. 11 PW7 Inspector Deepak Kumar deposed similarly to PW6. He proved rukka Ex.PW7/A. He further deposed that since the offence was u/sec.489C IPC and is the bailable offence, after discussion with SHO accused was released on police bail. On 12.12.2012, he got sent FICNs from malkhana to FSL Rohini through Ct. Lalit Kumar.
12 PW8 Inspector Tulsi Ram deposed that on 24.01.2014 he was posted in PS IGI Airport as SI. The file was marked to him. On 25.01.2015, he got the FSL result, prepared charge-sheet and filed the same in the court.
13 PW9 ASI Maan Singh, MHC (M), brought register no. 19 and proved the relevant entries/pages as Ex.PW9/A. 14 After the closure of PE, statement of accused was recorded u/sec.313 Cr.P.C. In this statement all incriminating evidence was put to the accused. He stated that this is false case against him and he has been falsely implicated in the present case without any fault on his part and he is innocent person who came FIR No. 356/12 State Vs. Syed Mohd. Ali page 5 of 21 6 from Iran to India on the relevant day and prior to his arrival in India he got exchanged the local Iranian currency into dollars but the said local money changer as Local Holidays were going on and all the prominent money changers were closed as he was to take his flight to India, but the said money changer was not having the total amount in dollars an he requested him to take 63 notes of Rs.1,000/- in Indian currency as he was an Indian National and was coming to India and he took the same from him but he was not aware or having any knowledge about the presence of alleged FICNs in his possession because he had kept all the currencies like US dollars and other currencies of different countries all together and he did not hid/concealed or kept separate the alleged FICNs to conceal the same from the detection at the airport. He is a Ph.D in Shia Muslim Religion and he has studied in Al-Mustafa International University in Iran from the year 1990-2003 and he is also a maulvi who deliver religious speeches in India and abroad on Muslim religion. He is also a book writer and have written so many books and he also translate books from Persian Language to Urdu and vis-versa. He is an innocent person having four daughters, one son and three sisters to support and no criminal case is pending against him anywhere in the world. He is also an social worker to help the needy people in his locality.
15 DE was led by accused. He examined himself as DW1 FIR No. 356/12 State Vs. Syed Mohd. Ali page 6 of 21 7 and deposed that he is religious scholar and working as Maulvi in Karnataka. He proved certificate to that effect as Ex.DW1/A. He had studied in Iran regarding Shia Muslim affairs and Principle of Islam. He proved the copy of said studies as Ex.DW1/B. He had written many books and also translated books from Persia and Arabic into Urdu language. In October, 2012, he went to Iran for giving lectures and remained there for 15-20 days and earned local Iranian currency equivalent to US dollar 10,000 approximately. On 05.11.2012, he went to local money changer namely Ibrahimi Money Exchange in Qom near Tehran for exchanging local currency into US Dollar. He got exchanged the currency into US dollar 9100. The money changer was not having more US dollars. He insisted for taking balance amount of Rs.63,000/- in Indian currency as he was Indian and going to India. On the insistence of money changer, he took that money. On 05.11.2012, there was local Holiday in Iran and banks were closed. On 06.11.2012, he came back to India. The receipt of money changer dated 05.11.2012 is proved as Ex.DW1/C. He further deposed that he was not aware that there was any FICNs. He was not in conscious possession of said FICNs and had not brought the said currency with any malafide intention.
16 Final arguments were heard.
17 I have gone through the record, evidence and FIR No. 356/12 State Vs. Syed Mohd. Ali page 7 of 21 8 submissions forwarded by Ld. APP for State and Ld. Counsel for the accused. My observations are as under:-
18 It is the case of the prosecution that on 06.11.2012 at about 5:00 p.m accused Syed Mohd. Ali came from Iran. He arrived at IGI Airport. On routine checking he was found having currency notes including 61 Indian currency notes of Rs.1,000/- denomination. Custom officials got checked those notes from Central Bank of India counter at Airport. The machine rejected 52 such notes. Due to this it was found that those 52 currency notes of Rs.1000/- denomination were FICNs. Matter was reported to SHO PS IGI Airport. The notes were examined by FSL, Rohini and all of them were found to be fake. After investigation, charge- sheet was filed with offence U/Sec.489(B) IPC.
19 However, at the time of framing of charge, accused was charged with both offences i.e. 489(B) and 489(C) IPC.
20 On the other hand, it is the case of the defence that the accused was not joined to proceed at Central Bank of India Counter and thus does not know whether the notes were the same which were seized from accused or are different. It is further stated that accused was not in conscious possession of those FICNs as the same were given to him by local money changer at Qom, Iran.
FIR No. 356/12 State Vs. Syed Mohd. Ali page 8 of 21 9 21 As far as the present case is concerned, following are the admitted/not disputed facts:
a) Accused was present on 06.11.2012 at about 5:00 p.m at Custom Hall, Arrival T-3, IGI Airport;
b) He was coming from Iran.
c) He was having in his possession Rs.63,070/- of
Indian Currency alongwith foreign currency.
d) The accused had not hidden any currency including 52 FICNs and entire currency was lying at one place.
e) Custom officials could not detect those notes as FICNs but took the currency to Central Bank of India Counter.
22 Now, to prove the guilt/innocence of the accused, following are the points for determination:
(i) Whether the 52 currency notes i.e. Ex.P-3/P1 are FICNs?
(ii) Whether those 52 FICNs are such that a normal/prudent person cannot distinguish it as fake currency?
(iii) Whether prosecution was able to prove a safe chain of custody of 52 FICNs i.e. from the time of recovery from accused and till its production before Court?
(iv) Whether the accused was aware/having knowledge/having conscious possession of FICNs Ex.P-3/P1?
(v) Whether the accused had used those FICNs Ex.P-
3/P1?
(vi) Whether the accused had committed offence FIR No. 356/12 State Vs. Syed Mohd. Ali page 9 of 21 10 punishable U/Sec.489(B) IPC?
(vii) Whether the accused had committed offence punishable U/Sec.489(C) IPC?
(viii) Relief? 23 My observation on the abvoesaid point of determination is as under:- Point No. (i)
Whether the 52 currency notes i.e. Ex.P-3/P1 are FICNs?
24 As far as this fact is concerned, prosecution had examined PW-5 Sh. Ajit Singh, Junior Forensic Examiner, FSL, Rohini. He had proved his report Ex.PW5/A. As per the report,52 currency notes which were sent to the FSL were found to be counterfeit currency notes or FICNs.
25 So in these circumstances, it can be held that Ex.P- 3/P-1 (52 currency notes) are FICNs.
Point No.(ii) Whether those 52 FICNs are such that a normal/prudent person cannot distinguish it as fake currency?
26 It is argued by Ld. counsel for the accused that alleged 52 FICNs are such that no ordinary/prudent person can distinguish/differentiate it from the original currency.
FIR No. 356/12 State Vs. Syed Mohd. Ali page 10 of 21 11 27 Opposed by the Ld. APP for the State.
28 As far as this fact is concerned, PW-3 Arjun Chandra (who intercepted the accused at IGI Airport), during cross- examination stated "it is correct that myself and other colleagues were not able to distinguish/find out the alleged fake currency notes out of total Indian currency at the time of recovery". He further deposed "it is correct that the bank officials were also not sure and able to distinguish that the currency notes were fake or not and they told us that the machine is not accepting the notes and those notes may be or may not be fake". He further deposed "it is correct that all the Indian currency notes were looked alike/similar and ordinary prudent person would not be in the position to make out that the notes in possession are counterfeit or fake by seeing it with naked eye and without any expertise in the scientific or concerned field".
29 In the statement of PW-7 i.e. IO, in cross-examination stated that "it is correct that bank officials were not sure about the genuineness of currency notes and they told us that the machine is not accepting the same. They also told us that alleged notes may be genuine or may be fake ones". He further deposed "it is correct that alleged fake notes looked like genuine and only an expert person can tell and differentiate the said currency notes".
FIR No. 356/12 State Vs. Syed Mohd. Ali page 11 of 21 12 30 In the statement, PW-5 i.e. Junior Forensic Examiner deposed that "it is correct that a common man does not have the facility to detect the FICNs immediately on the spot without the help of abovesaid scientific instruments". He further deposed "it is also correct that a layman cannot distinguish between original currency and counterfeit notes without the help of abovementioned instrument". He used instruments like VSC-2000, Docudox Dragon, Microscope etc. to ascertain the genuineness of those notes.
31 So from the aforesaid testimony of Custom officials, IO of the case as well as the scientist at FSL, Rohini, it can be concluded that 52 FICNS Ex.P-3/P1 are of such a quality that a layman/common man/prudent man cannot distinguish/differentiate it from original currency in normal course.
Point No.(iii) Whether prosecution was able to prove a safe chain of custody of 52 FICNs i.e. from the time of recovery from accused and till its production before Court?
32 It is argued by Ld. counsel for accused that prosecution was not able to prove the safe chain of custody of the alleged 52 FICNs. It is argued that it is the case of the prosecution that Custom Officials took the Indian currency and taken it to the FIR No. 356/12 State Vs. Syed Mohd. Ali page 12 of 21 13 Central Bank of India Counter and get it verified from the said counter. No where it is deposed that the same was done in the presence of the accused. It is stated that accused was never taken to the said counter with the money and possibility cannot be ruled out that the custom officials have changed 52 original currency notes belonging to accused with that of FICNs kept with them or lying with the bank as during that period accused was kept in the Guard Room.
33 As far as this defence of accused is concerned, a question was asked to PW-2 who deposed that "I cannot say whether the accused was taken to the bank counter at the time of verification of currency notes".
34 PW-3 Arjun Chandra had also stated "to get the said notes verified we approached Central Bank of India Counter in the Arrival Hall and asked them to verify whether the said Indian currency notes were genuine or fake".
35 So, both these witnesses had stated that after apprehending the notes by the Custom officials they had taken it to the Central Bank of India Counter. None of the witness has deposed that the accused was with the officials when the notes were examined by the bank. None of the bank official is examined in this case regarding the proceedings etc. which took place at the FIR No. 356/12 State Vs. Syed Mohd. Ali page 13 of 21 14 said bank counter. So it caused doubt on the fact as to whether the bank official have got verified any currency notes or that accused was also there in that proceedings. However, one fact got established that when the notes were apprehended by Custom officials, they were taken to some place before handing it over to police officials.
Moreover, PW3 Arjun Chandra, in his cross- examination had stated that "at the time of preparing of punchnama the alleged fake currency notes were sealed. I do not remember whose seal was affixed on the currency notes". Now this punchnama was prepared before making complaint with police officials. However PW7/IO in his cross-examination deposed that "the currency was handed over to me in an envelop and there was no seal as the same was not sealed by custom officers and it was in open condition". So, this is also a contradiction.
36 So this caused doubt on the safe chain of custody of those currency notes.
Point No.(iv) Whether the accused was aware /having knowledge /having conscious possession of FICNs Ex.P-3/P1?
37 It is argued by the accused that accused was not aware about the alleged fakeness of the currency notes. As per him on 05.11.2012, there was holiday in Iran. He got exchanged FIR No. 356/12 State Vs. Syed Mohd. Ali page 14 of 21 15 currency from a local currency changer vide Ex.DW1/C. He gave him USD 9100. He was not having more USDs. As accused was travelling to India, the money changer gave him Rs.63,000/- in Indian Currency. Though the accused was not willing to take the same but since it was bank holiday, he took the same. It is further stated that the said currency was not concealed but was lying with other currency notes of other countries. It is further stated that accused is an educated and religious person and clean antecedents.
38 On the other hand, it is argued by Ld. APP for the State that the accused has not raised any issue before Embassy of Iran or before any Indian Authority, this shows that he was conscious and was aware of the possession of those 52 FICNs.
39 As far as Ex.DW1/C is concerned, no question is asked from DW-1 i.e. accused regarding its genuineness i.e. the genuineness of the receipt as well as the facts mentioned therein. As per this receipt, it appears that accused had exchanged money and was given money including Rs.63,000/- on 05.11.2012. So this shows that on 05.11.2012, he received Rs.63,000/- from money changer. He was found in possession of Rs.63,070/- at IGI Airport. This amount justifies the amount as mentioned in Ex.DW1/C. FIR No. 356/12 State Vs. Syed Mohd. Ali page 15 of 21 16 40 Moreover as per the testimony of PW-3, during cross- examination deposed that "it is correct that accused had not concealed the alleged fake currency and all the currency were kept together by him".
41 Similarly, PW-7 i.e. IO of the case deposed that "it is also correct that accused had not taken the said FICNs and all the currency were kept together".
42 Similarly, both these two witnesses have deposed that the rest of the currency found, was genuine.
43 Moreover as per IO, he verified the antecedents of the accused and no previous involvement was found and also he came to know that accused is a religious scholar i.e. Maulvi and translates books from Persian and Arabic language into Urdu language. He also used to deliver lectures on Islam in Iran.
44 So on account of all these, it appears that accused is not a criminal person. Moreover, from the aforesaid discussions, it appears that he had obtained Indian currency on 05.11.2012 vide Ex. DW1/C. The amount of Indian currency exchanged is at approximately same as that recovered at the Airport. Moreover, as per discussion on Point No.(ii), it is not possible for a common man/layman/prudent man to differentiate between fake currency i.e. Ex.P-3/P1 and that of original currency.
FIR No. 356/12 State Vs. Syed Mohd. Ali page 16 of 21 17 45 So in these circumstances, it can be reasonably culled out that the accused might have obtained those 52 FICNs Ex.P- 3/P1 from the money changer at Iran. Since he came back on the very next day, so he was not having sufficient time to ascertain the genuineness of the same. Moreover, as per the testimony of PW- 5, a layman cannot ascertain the genuineness of Ex.P-3/P1 except through instruments which are not available in market. So the possibility cannot be ruled out that accused was not aware of and thus was not having conscious possession of the 52 FICNs Ex.P3/P1 when he was apprehended at IGI Airport.
Point No.(v) Whether the accused had used those FICNs Ex.P-3/P1?
46 As per the testimony of PW-3, he has deposed that "it is correct that accused was not using the alleged fake currency for shopping etc. at the Duty Free shop inside the Airport".
47 So as per the testimony of PW-2, accused was not using those FICNs as genuine.
48 Hence, it is established that accused was not using Ex.P-3/P1 i.e. FICNs as genuine.
Point No.(vi) FIR No. 356/12 State Vs. Syed Mohd. Ali page 17 of 21 18 Whether the accused had committed offence punishable U/Sec.489(B) IPC?
49 As far as offence U/Sec.489(B) IPC is concerned, it is argued by Ld. APP for the State that accused had bought 52 FICNs Ex.P-3/P1 and thus the offence U/Sec.489(B) IPC stands prove.
50 On the other hand it is argued by Ld. counsel for the accused that prosecution failed to prove that accused was in conscious possession of those FICNs and thus offence is not made out.
51 As far as Section 489(B) IPC is concerned, it is as following:-
"489B. Using as genuine, forged or counterfeit currency- notes or bank-notes - Whoever sells to, or buys or receives from, any other person, or otherwise traffics in or uses as genuine, any forged or counterfeit currency-note or bank-note, knowing or having reason to believe the same to be forged or counterfeit, shall be punished with (imprisonment for life), or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine."
52 As per this Section, if any person buys or traffic counterfeit currency notes having reason to believe or having knowledge that the same are counterfeit, he is liable for punishment under the aforesaid offence.
53 In this case, it is not disputed that the accused had FIR No. 356/12 State Vs. Syed Mohd. Ali page 18 of 21 19 bought Indian currency including 52 FICNs from a local money changer from Iran. However, as discussed before, the accused was not aware that those are FICNs and thus was not having conscious possession of Ex.P-3/P1.
54 In these circumstances, offence U/Sec.489(B) IPC is not made out.
Point No.(vii) Whether the accused had committed offence punishable U/Sec.489(C) IPC?
55 It is argued by Ld. APP for the State that the accused was found in possession of FICNs Ex.P-3/P1 and thus he is liable for punishment U/Sec.489(C) IPC.
56 It is again argued by Ld. counsel for the accused that since prosecution failed to prove conscious possession of the FICNs, no offence is made out.
57 As far as Section 489(C) IPC is concerned, it is as following:-
"489C. Possession of forged or counterfeit currency- notes or bank-notes - Whoever has in his possession any forged or counterfeit currency-note or bank-note, knowing or having reason to believe the same to be forged or counterfeit and intending to use the same as genuine or that it may be used as genuine, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both".
FIR No. 356/12 State Vs. Syed Mohd. Ali page 19 of 21 20 58 As per this Section, if any person is found in possession of any fake currency notes having reason to believe or having knowledge that the same are counterfeit, he is liable for punishment under the aforesaid offence.
59 In this case, it is not disputed that the accused was found in possession of 52 FICNs from a local money changer from Iran. However, as discussed before, the accused was not aware of those FICNs and thus was not having conscious possession of Ex.P-3/P1. Moreover, prosecution was not able to prove the safe chain of custody of FICNs and thus the benefit goes to the accused.
60 In these circumstances, offence U/Sec.489(C) IPC is not made out and not properly proved, beyond reasonable doubt, by the prosecution.
Point No.(viii) Relief 61 On account of aforesaid discussions, prosecution failed to prove its case. Accused is separately acquitted for the offences u/sec.489(B) and U/Sec.489(C) IPC.
62 Bail Bond u/sec.437A Cr.P.C. furnished and accepted.
FIR No. 356/12 State Vs. Syed Mohd. Ali page 20 of 21 21 63 Copy of judgment be given dasti to prosecution.
64 File be consigned to Record Room.
ANNOUNCED In the open Court (RAKESH PANDIT) today i.e. 31.05.2017 Special Judge : MCOCA ASJ-03 /PHC/New Delhi District FIR No. 356/12 State Vs. Syed Mohd. Ali page 21 of 21 22 SC No. 8566/16 State Vs. Syed Mohd. Ali.
FIR No. 356/12PS : IGI Airport U/sec.489B/489C IPC 31.05.2017 Present: Sh. Ravindra Kumar, Ld. APP for State.
Accused is present on bail.
Sh. Satvinder Singh, Ld. counsel for the accused.
Vide separate judgment announced and dictated in open court, accused Syed Mohd. Ali acquitted for the offences u/sec.489(B)/489(C) IPC.
Bail Bond u/sec.437A Cr.P.C. already furnished and accepted.
Copy of order be given dasti to prosecution.
File be consigned to Record Room.
(Rakesh Pandit) Special Judge : MCOCA ASJ-03/PHC/New Delhi District 31.05.2017 FIR No. 356/12 State Vs. Syed Mohd. Ali page 22 of 21