Delhi District Court
State vs Hazi Anees S/O Hazi Habib on 11 February, 2013
IN THE COURT OF MS. NISHA SAXENA:
ADDL.SESSIONS JUDGE03(NE): KARKARDOOMA
COURTS: DELHI.
SC No.192/10
Unique ID No.02402R0889612008
Date of institution:03.12.2008
Date of transfer:01.04.2010
Date on which reserved for order:04.02.2013
Date of delivery of order:11.02.2013
State Vs Hazi Anees s/o Hazi Habib
R/o H.No.176/3 & 177/3,
Main Kardam Puri Road, Delhi.
FIR No. 01/08
PS Crime Branch
U/s 489B/489C IPC
JUDGMENT:
1. Succinctly stated, the case of the prosecution is that on 05.10.2008, ASI Devender received a secret information that accused Hazi Anees was selling fake currency notes of Rs.500/ denomination printed in Pakistan at half rate and the said notes could be purchased from him if somebody told him that he was a man of Shahid and the currency notes were sent to him by one Iqbal Kana resident of Pakistan who was involved in sending fake currency notes to India. The FIR no. 01/08, PS Crime Branch 1/39 aforesaid information was communicated to ACP and same was reduced into writing. On the direction of ACP, ASI Devender formed a raiding party consisting of himself, Const. Kusum Pal, ASI Ravinder, Const. Devender Kumar, H.C. Dharmender, H.C. Kuldeep, H.C. Mahak Singh, Const. Ajay Rana, Const. Vikal Singh and Const. Vijender. They left the police station after making departure entry vide DD No.3. ASI Devender and his raiding party left the office in a govt. gypsy bearing registration No.DL1CJ5474 and one private Santro Car No.DL3CY0718 and reached at Yamuna Vihar, C Block, near BSES Office. Const. Kusum Pal was made a decoy customer and his search was taken and he was handed over one currency note of Rs.1000/ by IO ASI Devender for the purpose of purchasing the fake currency notes after noting down its number as OAS546421. Const. Kusum Pal (decoy customer) went to pulia Kardam Puri alongwith the secret informer and other members of the raiding party hid themselves at nearby places. Accused came from the side of Kardam Puri. He was having plaster on his right leg and was limping with the help of one hockey FIR no. 01/08, PS Crime Branch 2/39 stick. Const. Kusum Pal (decoy customer) had some conversation with him. He handed over a currency note of Rs.1000/ to the accused and in turn accused gave him four currency notes of Rs.500/ denomination. Const. Kusum Pal after deal gave the decided signal and on his signal all the other members of the raiding party reached there and overpowered the accused. Const. Kusum Pal handed over four currency notes of Rs.500/ denomination to the IO ASI Devender who kept the same in an envelope and sealed with the seal of DK. On the random search of the accused currency note of Rs.1000/ duly signed by the IO was recovered from the front pocket of his kurta, which was kept in an envelope and sealed with the seal of D.K. From the right side pocket of kurta of the accused, 96 currency notes of Rs.500/ denomination each of different numbers were recovered which were kept in a transparent polythene and sealed with the seal of D.K. 100 currency notes of Rs.500/ denomination each were recovered from the left side pocket of his kurta which were kept in a transparent polythene and sealed with the seal of D.K. ASI Devender prepared ruqqa FIR no. 01/08, PS Crime Branch 3/39 and sent the same to the police station through Ct. Devender for registration of the case. On 5.10.2008, further investigation of the case was handed over to SI P.C.Yadav who inspected the spot and prepared site plan. SI P.C.Yadav interrogated and arrested the accused. Accused led the police party to his house at first floor from where he took out four packets of fake currency notes containing 100 notes of Rs.500/ denomination each from the bed box which was lying in the room. Lists were prepared and the currency notes were kept in four different pullandas and sealed with the seal of R.S. Case property was deposited in malkhana and on 01.11.08 seven parcels were sent to CFSL Nasik. As per the report of Currency Notes Press, Nasik, the suspected notes were held to be counterfeit notes. Statements of witnesses were recorded u/s 161 Cr.P.C. and after completing the necessary formalities, charge sheet was filed u/s 489B & 489C of the IPC.
2. On the accusations, accused was charged for the offence punishable u/s 489B & 489C IPC. To the charge he pleaded not guilty and claimed trial.
FIR no. 01/08, PS Crime Branch 4/39
3. The prosecution has examined 5 witnesses in support of its case.
● PW1 is Const. Kusum Pal, the decoy customer. PW2 is Const.Devender Kumar who identified the DD No.2 recorded by ASI Devender Singh as per Ex.PW2/A. The departure entry of the raiding party vide DD No.3 is proved as Ex.PW2/B. PW3 is H.C. Suresh who recorded the FIR which has been proved as Ex.PW3/A. ● First IO ASI Devender Singh died before he could be examined. PW4 is SI P.C. Yadav (second IO of the case) to whom the investigation was handed over on 5.10.2008. He prepared site plan. He interrogated and arrested the accused vide arrest memo Ex.PW1/H and personal search memo Ex.PW1/I. Report of Government Currency Press Nasik is proved as Ex.P1. PW5 is H.C. Chand Ram, MHC(M).
4. Statement of accused was recorded u/s 313 Cr PC in which he denied the prosecution case and pleaded false implication. It was stated that IO had manipulated all the records. Nothing was recovered from his possession or FIR no. 01/08, PS Crime Branch 5/39 from his house. IO had planted the same upon him. Actually he was lifted with his two sons from his house at 6.30 a.m. and thereafter IO forcibly asked him to bring Rs. 70,000/. He borrowed the same from his relatives and gave it to IO. Then IO released his two sons and and obtained his signature on blank paper. He had been falsely implicated at the instance of Munnawar Hussain, MP of Kairana, Distt. Muzaffar Nagar, U.P. as he was having enmity against him as he was the Chairman of Municipality Kairana from BSP and Munnawar Hussain was from SP.
● In his defence he has examined his two sons DW1 Amzad and DW2 Nadeem.
5. I have given my anxious consideration to the rival contentions of Addl. PP and Ld. defence counsel Mr. R.K. Kochar and gone thorough the entire record including the rulings relied upon.
6. Section 489B of IPC relates to using as genuine, forged or counterfeit currency notes or bank notes. The object of the legislature in enacting this section is to stop circulation of forged notes by punishing all persons who, FIR no. 01/08, PS Crime Branch 6/39 knowing or having reason to believe the same to be forged do any act that would lead to their circulation. Section 489C deals with possession of forged or counterfeit currency notes or bank notes. To demand conviction u/s 489B of IPC, the prosecution must prove:
(i) that the currency note or bank note in question was forged or counterfeit
(ii) that the accused sold to, or bought or received from, some person, or trafficked in, or used as genuine, such currency note or bank note.
(iii) that when he did so he knew or had reason to believe that it was forged or counterfeit.
To demand conviction u/s 489C IPC, the prosecution must prove:
(i) that the accused was in possession of a forged or counterfeit currency note or bank note
(ii) that he must be knowing or must have reason to believe that the note was forged or counterfeited; and FIR no. 01/08, PS Crime Branch 7/39
(iii) he must have intended to use such note as genuine.
7. The testimony of the prosecution witness PW1 Const. Kusum Pal who was sent as a decoy customer is very significant. He deposed that on 05.10.2008, a secret information was received by ASI Devender that one Hazi Anees @ Mota had been selling currency notes of Rs.500/ denomination printed in Pakistan at half rates and the said note could be purchased from him if somebody told that he was a man of Shahid. Iqbal Kana r/o Pakistan was known as Shahid and he was involved in the work of sending fake currency notes to India. After receiving the said information, the concerned ACP was informed about it and ASI Devender reduced the said information into writing vide DD No.2. Thereafter a raiding party consisting of ASI Devender, Const. Kusum Pal, ASI Ravinder, Const. Devender Kumar, H.C. Dharmender, H.C. Kuldeep, H.C. Mahak Singh, Const. Ajay Rana, Const. Vikal Singh and Const. Vijender, was prepared. They made departure entry vide DD No.3 at 7.30 p.m. and left the police station alongwith secret informer in official gypsy and one private FIR no. 01/08, PS Crime Branch 8/39 santro car. PW1 Const. Kusum Pal has been corroborated by Const. Devender who was also a member of raiding party on the point that secret information was received by ASI Devender (since dead) and the raiding party consisted of the above said members and that they left the police station in a government gypsy bearing registration No.DL1CJ5474 and one private Santro Car No.DL3CY0718. PW1 Const. Kusum Pal further deposed that left the office of sun light colony 'lohe wala pul' and reached Yamuna Vihar C Block, near Bijli office. They all were in civil dress. ASI Devender briefed all the raiding party members and requested 810 public persons to join the investigation but they all refused for the same. He was made as a decoy customer and his search was taken by H.C. Dharmender on the instructions of IO. The memo to this effect has been proved as Ex.PW1/X bearing his signatures at point A. ASI Devender handed over to him one currency note of Rs. 1000/ signed by him and the handing over memo to this effect is Ex.PW1/A. He alongwith secret informer reached at pulia Kardam Puri. They saw accused Hazi Anees FIR no. 01/08, PS Crime Branch 9/39 coming from the side of Kardam Puri and he was identified by the secret informer. Accused Hazi Anees was having a plaster on his right foot. Secret informer left that place after pointing out the accused Hazi Anees. He went to accused Hazi Anees and told him that he was a man of Shahid and gave him currency note of Rs.1000/ handed over to him by the IO. Hazi Anees gave him four currency notes of Rs. 500/ each. All the members of the raiding party were having nakabandi at the spot. He gave signal to the IO by touching his head with the hand. All the raiding party members overpowered accused Hazi Anees. PW1 Const. Kusum Pal handed over four currency notes of Rs.500/ each to the IO. Same were enclosed in an envelope and sealed with the seal of D.K. and serial No.1 was given to the envelope. The seizure memo of the said currency note is Ex.PW1/B bearing his signatures at point A. IO offered search of all the raiding party members to the accused but he refused for the same. Thereafter search of the accused was conducted and one currency note of Rs.1000/ duly signed by the IO was recovered from the front pocket of his kurta.
FIR no. 01/08, PS Crime Branch 10/39 The said note was enclosed in an envelope and sealed with the seal of D.K. and serial no.2 was given to the envelope. The seizure memo of the same is Ex.PW1/C bearing his signature at point A. From the right side pocket of kurta of the accused, 96 currency notes of Rs.500/ denomination each were recovered. All the 96 notes were seized by the IO and kept in a transparent polythene and was covered with the doctors tape and sealed with the seal of D.K. and serial No.3 was given to the same. Seizure memo of the same is Ex.PW1/D bearing his signature at point A. Upon the search of accused, from the left side pocket of his kurta, total 100 currency notes of Rs.500/ denomination each tightened with rubber band were recovered. All the 100 notes were seized by the IO and serial No.4 was given to the same. Seizure memo of the same is also Ex.PW1/D bearing his signature at point A. The list of currency notes on which serial No.1 was given is Ex.PW1/E, the list of currency notes on which serial No.3 was given is Ex.PW1/F and the list of currency notes on which serial No.4 was given is Ex.PW1/G. Thereafter IO prepared ruqqa and got the case FIR no. 01/08, PS Crime Branch 11/39 registered through Ct. Devender. In the meantime, SI P.C.Yadav reached at the spot as per the instruction of the Higher police officials. The accused, documents of the case and case property were produced before him. In the meantime Const. Devender came back to the spot with ruqqa and FIR and same were handed over to SI P.C.Yadav. SI P.C. Yadav interrogated the accused and arrested him vide arrest memo Ex.PW1/H and personal search memo is Ex.PW1/I. Thereafter accused made a disclosure statement which was recorded by SI P.C.Yadav vide Ex.PW1/J. Accused took the police to his house in Kardam Puri and got recovered four packets of currency notes of Rs.500/ denomination (each packet having 100 currency notes) from the wooden box of his bed kept in a room on the first floor of his house. All the four packets were kept in a transparent polythene separately covered with the doctors tape and were seized and numbered as 5,6,7 & 8. Seizure memo of the same is Ex.PW1/K bearing his signature at point A. Four lists of the seized notes were prepared and same are Ex.PW1/L to Ex.PW1/O bearing his signatures at point A. FIR no. 01/08, PS Crime Branch 12/39 Seal after use was handed over to Const. Devender by the IO and the handing over memo to this effect is Ex.PW1/P bearing his signature at point A. His statement was recorded by the IO. One bundle containing 96 currency notes of Rs.500/ denomination is Ex.PW1/P1 and other five bundles containing 100 currency notes of Rs.500/ denomination were identified by the witness to have been recovered from accused Hazi Anees. All the five bundles containing currency notes of Rs.500/ denomination each are collectively Ex.PW1/P2. The other bundle containing four currency notes of Rs.500/ denomination each was identified by the witness to be the same as given by the accused in lieu of one genuine currency note of Rs.1000/. The said bundle is collectively proved as Ex.PW1/P3. Seven transparent polythene having seal of RS taken out from the same envelope and were identified by the witness as the same polythene in which the currency notes were wrapped separately after seizure and recovery and was collectively proved as Ex.PW1/P4. Another sealed parcel with the seal of DK was produced, opened and found to FIR no. 01/08, PS Crime Branch 13/39 contain one currency note bearing No.0AS 546421 which the witness correctly identified as the same which had been recovered from the pocket of kurta of the accused which he was wearing. The currency note was handed over to him by ASI Devender for deal with the accused. The currency note was proved as Ex.PW1/P5. PW2 Const. Devender has corroborated PW1 on all material particulars.
8. PW4 SI P.C. Yadav to whom the investigation was assigned on 5.10.2008 prepared site plan vide Ex.PW1/DA. He arrested the accused, recorded his disclosure statement and further stated that he asked several passers by to join the raiding team but they refused to join the same and left the spot without disclosing their names and address citing their genuine reasons. Thereafter the accused led the police party to his house at first floor. There was a bed box lying in the room. He took out four packets of fake currency notes from the bed box. Each packet was containing 100 notes of Rs.500/ denomination. He prepared separate document regarding the description and number of those counterfeit currency notes recovered at the instance of the accused and FIR no. 01/08, PS Crime Branch 14/39 serial No.5,6,7 & 8 was given to such lists which are Ex.PW1/L, Ex.PW1/M, Ex.PW1/N and Ex.PW1/O. He also stated that it was revealed that multiple counterfeit currency notes were having same serial numbers and same had been mentioned in the list of notes at serial No. 5 to 8. He prepared four different pullandas of the four packets of counterfeit currency notes and same were sealed with the seal of R.S. and were taken into possession vide seizure memo Ex.PW1/K. He further sent all the counterfeit currency notes to Government Currency Note Press, Nasik, for getting the opinion. The report is proved as Ex.P1.
9. As per the report of Shri V.N.Zadbuke, Asstt. Works Manager Gazetted Officer ClassI, for General Manager, Currency Note Press, Nasik:
(i) 600 notes of Rs.500/ each were counterfeit
(ii)Paper: Not genuine
(iii)Paper Thickness: Thicker than genuine note paper
(iv) Printing Colours: Ink shades were not matched
(v) Colour Registration: Not correct
(vi)Numbering: Not as per genuine note FIR no. 01/08, PS Crime Branch 15/39
(vii)Quality of Printing: Did not match with the printing quality of the genuine note.
These referred suspected notes were counterfeit notes as: '(i) The intaglio printing for the text is absent.
(ii)"OVI" effect for the figure "500" is absent.
(iii)The body printing and tint printing lacks sharpness.
(iv)The R.B.I. Seal lacks sharpness and fine details of Ashoka Pillar are missing.
(v)Floral design lacks sharpness and printing ink colours do not match with the genuine note.
(i) Intaglio printing was missing.
10. Ld. Prosecutor has contended that from the testimony of the aforesaid witnesses the prosecution has proved that accused Hazi Anees was in possession of counterfeit currency notes; that he sold four counterfeit notes to the decoy customer PW1 Const. Kusum Pal; that he knew that those currency notes were forged and counterfeit. On his search 196 forged / counterfeit notes of Rs.500/ denomination were recovered. Further at his instance, from his residence four bundles of 100 fake currency notes of Rs.
FIR no. 01/08, PS Crime Branch 16/39 500/ denomination were recovered i.e. from his H. No. 176/3 / 177/3, Main Road, Kardam Puri, Delhi, which were lying in an old double bed of his house.
11. Per contra, it has been contended by Ld. defence counsel that the prosecution story seems improbable because the accused was not selling vegetables that he would come out of his house and would stand on the road as the place from where he was apprehended was just 100 feet away from his residence; that the recovery memos Ex.PW1/E, Ex.PW1/F, Ex.PW1/G and Ex.PW1/L do not bear signatures of the accused; that no public witness was joined in the investigation though the place from where the accused was apprehended is thickly populated area and pulia in front of vicinity remains very crowded. The alleged recovery was effected from the residence of the accused, however, no neighbour or family member was associated in the investigation. No site plan of the house from where the recovery was effected was prepared. No finger prints of the accused were lifted from the currency notes. It is further contended that the site plan Ex.PW1/DA does not disclose at FIR no. 01/08, PS Crime Branch 17/39 whose instance it was prepared. The prosecution has not disclosed the source of Rs.1000/ which was handed over to the decoy customer PW1 Const. Kusum Pal; that there should have been entries by MHC(M) to prove from where the said note was drawn. Though the accused was apprehended from near BSES office at Yamuna Vihar, no official from BSES was joined in investigation. That no sketch of the kurta that the accused was wearing or measurement of the kurta was taken to show that it could contain 100 counterfeit currency notes in each pocket. Though the crime team officials claimed to have been at the spot from 8.55 a.m. to 3 p.m., no information was given to the local police. It does not seem plausible that no official from the local police station came, though the crime branch officials remained at the spot for so long. As per the police witnesses there were 78 persons at home, however, no sign or statement of those witnesses were recorded. It is alleged that the accused has been falsely implicated at the instance of one Munnawar Hasan who also belonged to Kairana and his brother Jameel Mohd. was posted as Head Constable in FIR no. 01/08, PS Crime Branch 18/39 Police Station Sun Light Colony. Ld. defence counsel has pointed out certain discrepancies in the statement of the police officials also. PW1 Const. Kusum Pal stated that 78 persons were available in the house of the accused, however, PW2 Const. Devender stated in his cross examination that none of the family members were present on the first floor. He also stated that no family member was joined as a witness to the recovery of the currency notes in the house of the accused or any of them was asked to sign on the recovered currency notes. It is also stated that PW1 Const. Kusum Pal stated that lists of currency notes were got signed by the accused though the lists Ex.PW1/E, Ex.PW1/F and Ex.PW1/G are unsigned by the accused. Later on he admitted that Ex.PW1/F and Ex.PW1/G did not bear the signature of the accused. The witness volunteered that the signatures of accused were not obtained on those documents. It is further contended that there is a doubt if the police witnesses actually went to the house of the accused as the police witnesses are unable to say as to how many storeyes were constructed in the house of the accused.
FIR no. 01/08, PS Crime Branch 19/39
12. However, the record reflects that PW1 and PW2 both are unanimous on the point that the recoveries were effected from the first floor only. PW1 has also stated in the cross examination that public persons of the neighbourhood were requested to join the proceedings but none agreed and came forward. In his presence no written notice was given to anyone. He could not tell the name of the persons of the neighbourhood who were requested to join the team. PW1 Const. Kusum Pal also stated in his cross examination that in his presence information regarding recovery of fake currency notes was given to the local police station. He stated that they remained at the house of the accused for one hour and left his house at about 4.30 p.m. Signatures of the accused were obtained on the list of the currency notes prepared at his house. However, he admitted that Ex.PW1/L did not bear signatures of the accused. He denied the suggestion that it did not bear the signatures of the accused as it was prepared in the police station. After use the seal was handed over to Const. Devender but he did not remember as to what time it was returned. However, the FIR no. 01/08, PS Crime Branch 20/39 discrepancies pointed out are minor in nature. The evidence of the witnesses read as a whole undoubtedly have a ring of truth. Minor discrepancies on trivial matters not touching the core of the case or not going to the root of the matter, do not permit rejection of the evidence as a whole. Minor omissions in the statements of the witnesses are never considered to be fatal. The prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. Therefore, undue importance is not to be attached to omissions, contradictions and discrepancies as long as they do not go to the heart of the matter and shake the basic version of the prosecution case.
13. It has been contended by Ld. defence counsel that the accused has been falsely implicated at the instance of one Munnawar Hassan, M.P from Kairana, District Muzaffar Nagar, whose cousin H.C. Jameel Ahmed was posted in Crime Branch in Sun Light Colony. To prove false FIR no. 01/08, PS Crime Branch 21/39 implication, the defence has examined two witnesses i.e. sons of the accused namely DW1 Amzad and DW2 Nadeem. They have stated that on 05.10.08 at about 6.30 a.m, 810 people knocked their main gate. They opened the door. Police asked them about their father and forcibly went upstairs. Their father was lying on bed as he was having fracture in his right leg. DW1 further stated that they forcibly took his father, him and his brother Kareem to the office of Crime branch at Sun light colony. They illegally detained them over there. Later on he came to know that his brother Nadeem had made a call to 100 no. Those persons of crime branch demanded Rs. 5 lacs from them in order to release them but they could only arrange Rs. 70,000/ so they released him and his brother but falsely implicated his father in the present case. It is further stated that one person HC Jameel Ahmed was posted in Crime branch in Sun Light colony. HC Jameel Ahmed was cousin of Late Sh. Munnawar Hassan, MP, Kairana, District Muzaffar Nagar, UP from Samajwadi Party. During that period his father was the Chairman of Municipal Corporation Kairana from BSP.
FIR no. 01/08, PS Crime Branch 22/39 Munnawar Hassan was having political rivalry against his father. He had got his father attacked several times by his antisocial elements. He was a highly influential person. He had a grudge against his father as he wanted to get elected from his party as the chairman of Municipal Corporation Kairana. Due to this fear they left their village and shifted to Delhi. At the time of argument on the bail application of his father before the Hon'ble court of Sh. B. S Chumbak, Ld. ASJ, they had given their affidavit to the Hon'ble court but the court directed them to produce the same at the time of their examination. The said affidavit executed on 04.12.08 Ex.DW1/A bears his signatures at point A and B respectively. Statement of DW2 Nadeem is also on similar lines who stated that his father and his two brothers were forcibly removed by the police at about 6.30 a.m. Thereafter at about 7 / 7.15 a.m., he made a call at 100 number. Police came to their house and he narrated the entire incident to them that his father had been falsely booked in the present case. Police released his brothers Amzad and Kareem after taking Rs.65,000/ to Rs.70,000/ FIR no. 01/08, PS Crime Branch 23/39 from them. It is also stated that they were directed by Ld. ASJ, Sh. B.S.Chumbak, to submit their affidavit at a later stage. The affidavit sworn by him is Ex.DW2/A. Though it is stated that son of the accused DW2 Nadeem informed the police at 100 number, however, in cross examination of PW1 Const. Kusum Pal the suggestion was given that his daughter in law made a call at 100 number informing the police that he had been lifted by the police from his residence.
14. In his cross examination, DW1 admitted that he had mentioned in the affidavit that when ASI Dharmender and others came to know about the phone call on 100 number then they showed the timing of this case prior to phone call made by Nadeem on 100 number. He admitted that as per rukka of this case time of incident is shown as 8.55 am on 05.10.08. He also stated that he was educated upto 12 th standard. He had heard the name of Anti corruption branch. He was aware that in case any government servant was demanding money in consideration of some illegal help then the matter may be reported to anti corruption branch. He FIR no. 01/08, PS Crime Branch 24/39 had not lodged any complaint before any authority concerning false implication of his father in this case, soon after they came back from crime branch office. He had not lodged any complaint regarding threat extended by Crime branch official to them to the effect that they should not complain anywhere. Though the defence is taking the plea of false implication, however, there is no plausible evidence on record to show that the accused has been falsely implicated. No complaint to DCP, Commissioner of Police or any other authority was made by the family of the accused immediately after his alleged false implication. As regards directions or orders given by Ld. ASJ, Shri B.S.Chumbak, in respect of filing of affidavits at the time of trial, there is no direction or order placed on record to substantiate the same and therefore, it does not inspire any confidence. Merely because such affidavits were executed in December, 2008, it would not prove any false implication of the accused. It has further been contended by Ld. Prosecutor that had there been any intention to falsely implicate the accused a few currency notes would have been FIR no. 01/08, PS Crime Branch 25/39 enough and the bulk of the currency notes that were recovered from the accused are enough proof to show genuinity of the prosecution case. It has been further contended that the antecedents of the accused are also not clean and he was involved in a number of cases which is reflected by Ex.PW4/B and are as under:
(i) 153/95, U/s 25 of Arms Act, PS Kairana, Muzaffar Nagar
(ii) 244/95, U/s 8/15 NDPS Act, PS Kairana, Muzaffar Nagar
(iii) 138/87, U/s 323/324 IPC, PS Kairana, Muzaffar Nagar
(iv) 118/81, U/s 452/323/509, PS Kasirana, Muzaffar Nagar
(v) 64/96, U/s 120B/121/121A/122/124/124A IPC & 25/54/59 Arms Act, PS Lodhi Colony, Delhi.
(vi) 349/96, U/s 223/224 IPC, PS Shamli, Muzaffar Nagar
(vii) 182/96, U/S NSA, PS Shamli, Muzaffar Nagar
15. Ld. Defence Counsel has harped on the point that non joining of the public witnesses in the investigation creates a serious doubt about the prosecution story and he has filed a number of rulings on record in support of his contentions which are as under:
(i) Recent Criminal Reports - 1988 (2) 421, Pawan Kumar vs Delhi Administration (Delhi High Court)
(ii)2000 Cr.L.J. 2401, Mohd. Raffique vs State (Delhi High Court)
(iii) AIR 1999 Superme Court49, Sans Pal Singh vs State of FIR no. 01/08, PS Crime Branch 26/39 Delhi
(iv)1996(1) CCRC 223, Sanjeev Puri vs State (Delhi High Court)
(v) 1995 Cri.L.J.3213 (S.C.), Pradeep Narayan Madgoankar etc. vs State of Maharashtra.
16. The rulings No.2,4 and 5 are in respect of the offences u/s NDPS and TADA and the requirements of law are different in those cases. Otherwise also, the facts of the cases referred to are distinguishable. The ratio of one case cannot be mechanically applied to another case without having regard to the facts and situation and circumstances obtained into two cases. In the case in hand, the prosecution witnesses have given reasons for non joining of public witnesses. PW1 Const. Kusum Pal stated that they requested 810 public persons to join the investigation but they all refused for the same. In respect of the recovery from the house of the accused, PW1 Const. Kusum Pal stated that the public persons of the neighbourhood were requested to join the proceedings but none agreed and came forward. In his presence no written notice was given to anyone. He could not tell the name of the persons of the neighbourhood who were requested to join the team. PW2 FIR no. 01/08, PS Crime Branch 27/39 Const. Devender Kumar has also corroborated PW1 Const. Kusum Pal on the point that 810 public persons were requested to join the raiding party after detailing the secret information but none agreed and went away without disclosing their names and addresses. PW4 SI P.C. Yadav (second IO of the case) stated that he asked several passers by to join the raiding party but they all refused to join the same and left the spot without disclosing their names and address citing their genuine reasons. He could not tell the name of those passers by, but he had asked their names and addresses.
17. Ld. Prosecutor has contended that merely because the public witnesses have not joined the investigation the police witnesses do not become doubtful if their testimony is otherwise convincing. I find weight in the plea that these days rarely any public person prefers to be a witness. It was observed by the Apex Court in a case titled as Krishna Mochi Vs State of Bihar iii (2002) SLT 250 that 'it is a matter of common experience that in recent times there has been a sharp decline of ethical values in public life even in FIR no. 01/08, PS Crime Branch 28/39 developed countries much less a developing one, like ours, where the ratio of decline is higher. Even in ordinary cases, witnesses are not inclined to depose or their evidence is not found to be credible by the courts for manifold reasons'. It is stark reality that hardly any laity in our society prefers to be a witness in such incidents, what so ever may be the reason. Keeping in mind all these facts, I think it will not be just to let off an accused of such a grave offence on this score alone, ignoring all other evidence on record against him. It has been held by the Apex Court time and again that police officers like other state functionaries are expected to act impartially in the discharge of their functions. Same can be believed to be true in the same way as other witnesses. Shorn of citing a bevy of authorities, may I refer a few cases on this point like State of Assam Vs Muhim Barkataki, AIR 1987 SC 98 wherein it was observed by the Lordships of the Superme Court that evidence of police officer cannot be underestimated merely because he is a police officer. The Apex Court in case Hazari Lal Vs State (Delhi Administration) AIR 1983 SC 873 had gone to the extent FIR no. 01/08, PS Crime Branch 29/39 of saying that evidence of a police officer laying trap, if found reliable can be accepted without corroboration.
18. The testimony of the police witnesses cannot be rejected merely because they happened to be police officers. It was observed by Hon'ble Supreme Court in Tahir vs State, (1996) 3 SCC 338, that no infirmity attaches to the testimony of police officials, merely because they belong to the police force. It was observed in Aner Raja Khima vs The State of Saurashtra, AIR 1956 SC 217, that 'the presumption that a person acts honestly and legally applies as much in favour of police officers as of others. It is not proper and permissible to doubt the evidence of police officers. Judicial approach must not be to distrust and suspect their evidence on oath without good and sufficient ground thereof. It cannot be disputed that the public does not want to get dragged in police and criminal case and wants to avoid them, because of long drawn trials and unnecessary harassment'. Similar view was taken in Manish vs State, 2000 VIII AD(SC) 29 and in A. Bhai vs State of Gujarat, AIR 1980 SC 696, that 'we cannot be FIR no. 01/08, PS Crime Branch 30/39 oblivious to the reluctance of a common man to join such raiding parties organized by the police, lest they are compelled to attend police station and courts umpteen times at the cost of considerable inconvenience to them, without any commensurate benefit. Hence, no adverse inference on account of non joining of public witnesses in such raids should be drawn'.
19. In absence of public witnesses, the statement of the police officials cannot be doubted. In 1986 Cri.L.J. 2011, Mohd. Yusufs, the Madras High Court in case of counterfeit currency notes has held that the evidence of the Investigating Officer need not necessarily be corroborated. Recovery of the counterfeit currency notes has been proved through cogent evidence. Mere absence of independent witness is not sufficient ground to discard the evidence. Evidence of a police officer regarding the recovery at the instance of the accused should ordinarily be believed. It is for the accused to show that such evidence is unreliable. It is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action FIR no. 01/08, PS Crime Branch 31/39 merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such action. The large number of notes found on the person of the accused / his residence constitute a sufficient ground for drawing the inference that the intention was to use them as genuine or that they may be used as genuine. No infirmity attaches to the testimony of police officials merely because they belong to the police force and there is no rule of law or evidence which lays down the conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The rule of prudence, however, only requires a more careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form the basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution FIR no. 01/08, PS Crime Branch 32/39 case.
20. This is not the case of the accused that though the currency notes were found in his possession, he did not know and did not have any reason to believe the same to be counterfeit currency. This is also not his case that the currency notes were given to him by someone and he had accepted the same without suspecting them to be counterfeit currency. The case of the accused is that these currency notes were not at all recovered from his possession. If a person found in possession of counterfeit currency, instead of giving any explanation for such counterfeit currency possession, chooses to altogether deny the possession and such a defence is found to be false, the inevitable inference is the he had reasons to believe that the currency notes recovered from him were counterfeit currency notes and that precisely was the reason why he was denying the recovery from him. The knowledge and intention are state of mind which cannot be proved by direct evidence and have to be inferred from the attending circumstances. Possession of counterfeit currency, coupled with denial of possession and FIR no. 01/08, PS Crime Branch 33/39 no attempt to explain as to how the accused came into possession of such currency is sufficient to infer the requisite knowledge and intention on the part of the accused. No doubt, the fundamental principles of criminal jurisprudence is that it is for the prosecution to prove all the ingredients of the offence alleged to have been committed by the accused, but, when the prosecution has proved all that it could have and the circumstances proved by it point unerringly towards the guilt of the accused, in that case if there exists a fact which is only in the knowledge of the accused and that fact is compatible with his innocence, it is for the accused to bring such a fact in the notice of the court. The fact as to how he come into possession of those currency notes is a fact especially within the knowledge of accused and in view of Section 106 of the Evidence Act when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. If the person found in possession of currency notes doe not tell the court as to how he had come into their possession and chooses to altogether deny his possession of such currency FIR no. 01/08, PS Crime Branch 34/39 notes, the court would be justified in inferring that he had received those notes from someone.
21. The prosecution has been successful in proving that the currency notes in question were forged or counterfeit. The authenticity of the report of Currency Note Press, Nasik Road, Maharashtra, has not been challenged by the accused. It is also proved that the accused was selling or trafficking such currency notes and when he did so he knew and had reason to believe that the currency notes were forged and counterfeit. The accused has not given any explanation as to wherefrom he obtained the said forged currency notes. In Peer Mohammed 2004 Cri.L.J. 45 (Mad) and Ponnuswamy 1995 Cri.L.J. 2658 (SC) where an accused was found in the possession of forged currency notes and he gave no explanation as to wherefrom he obtained the said forged currency notes, his conviction and sentence under Section 489B and 420 IPC was upheld. In the instant case the bulk of the fake currency notes is sufficient to infer that the accused knew that the currency notes with him were fake or counterfeit. In Public Prosecutor vs Rowthula FIR no. 01/08, PS Crime Branch 35/39 Kondal Rao, AIR 1939 Mad 96 where thirty eight counterfeit currency notes were found in the possession of the accused, it was held that the only reasonable presumption that could be drawn was that the accused was in possession of these notes with the intention of using them as genuine. The unimpeachable evidence led by prosecution clearly, indubitably and irresistibly leads to the inference that the accused had the intention to sell the notes. Such intention is proved by the circumstances that he was in possession of such and similar notes in large numbers and his possession for any other purpose is inexplicable.
22. In view of the evidence on record, I hold that the prosecution has been successful in proving that the accused was in possession of counterfeit currency notes and was selling the same knowing the same to be counterfeit. Accused is, accordingly, convicted for the offence punishable U/s 489B and 489C of IPC. Let he be heard on the point of sentence.
Announced in open court (Nisha Saxena)
Dated:11.02.2013 Addl. Sessions Judge03(NE):
Karkardooma Courts, Delhi.
FIR no. 01/08, PS Crime Branch 36/39
IN THE COURT OF MS. NISHA SAXENA:
ADDL.SESSIONS JUDGE03(NE): KARKARDOOMA COURTS: DELHI.
SC No.192/10
State Vs Hazi Anees s/o Hazi Habib
R/o H.No.176/3 & 177/3,
Main Kardam Puri Road, Delhi.
FIR No. 01/08
PS Crime Branch
U/s 489B/489C IPC
Order on Sentence:
1. I have heard Ld. Addl P.P. for the State and Cl. Mr Rakesh Kochar for the convict on the point of sentence.
2. Ld. Counsel for the convict has contended that convict is an old man of 74 years of age and has not been keeping well, that he is a heart patient and a diabetic. It is further submitted that convict is the head of the family. That he has no previous conviction for any offence and therefore, a request has been made for taking a lenient view.
3. On the other hand, ld. APP has beseeched for the maximum sentence for the convict alleging that a huge amount of fake FIR no. 01/08, PS Crime Branch 37/39 currency notes was recovered from his possession. In the opinion of ld. APP, such offences cannot be pardoned as same leave an adverse impact on the economy of our country.
4. The accused in the instant case is 74 years of age and has been facing trial since December 2008. In Abdul Fakirsaheb Mamtule 2001 Cri LJ 3396, where the accused was found guilty u/s 489B/489C and 420 IPC, the sentence of seven years' rigorous imprisonment was reduced to three years' simple imprisonment. Keeping in view that 5 years had lapsed since the incident and convict was an old man of 69 years of age. This case is fully applicable to the case in hand.
5. In the facts and circumstances, I sentence the accused to undergo simple imprisonment for a period of 24 months and to pay a fine of Rs.50,000/ for the offence punishable u/s 489B of IPC, in default of payment of fine, convict will further undergo simple imprisonment for a period of 10 months.
6. As regards the offence u/s 489C of IPC, convict is sentenced to undergo simple Imprisonment for a period of 24 months and to pay fine of Rs.20,000/, in default of payment of fine, convict will further undergo simple imprisonment for a period of 6 FIR no. 01/08, PS Crime Branch 38/39 months.
7. Both the sentences shall run concurrently. However, the fine shall be paid separately for each of the offence.
8. The period of detention already undergone by him during investigation, inquiry or trial may be set off against the sentence awarded in this case, in view of section 428 Cr.PC.
9. A copy of this order as well as of judgment be given to convict free of cost.
Announced in open court (Nisha Saxena)
Dated:11.02.2013 Addl. Sessions Judge03(NE):
Karkardooma Courts, Delhi.
FIR no. 01/08, PS Crime Branch 39/39