Allahabad High Court
Ashfaque vs State Of U.P. on 23 February, 2016
Bench: Surendra Vikram Singh Rathore, Pratyush Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved on 03.02.2016 Delivered on 23.02.2016 A.F.R. Case :- CRIMINAL APPEAL No. - 261 of 2014 Appellant :- Ashfaque Respondent :- State Of U.P. Counsel for Appellant :- Rajbaksh Singh Counsel for Respondent :- Govt. Advocate And Case :- CRIMINAL APPEAL No. - 262 of 2014 Appellant :- Jaikam Respondent :- State Of U.P. Counsel for Appellant :- Rajbaksh Singh Counsel for Respondent :- Govt. Advocate Hon'ble Surendra Vikram Singh Rathore,J.
Hon'ble Pratyush Kumar,J.
[Per Hon'ble Pratyush Kumar,J] Both the appeals arise out of the same judgment and order dated 10.02.2014 passed in Sessions Trial No. 16 of 2013 [State Vs. Ashfaque and another], they have been heard together and are disposed of by a common order.
In the aforesaid appeals the appellants Ashfaque and Jaikam have been convicted and sentenced as under:
U/s 489-B IPC : Life Imprisonment with fine of Rs.25,000/- each : In default of payment of fine two years RI.
U/s 489-C IPC : Five years RI with fine of Rs.7,000/- each : In default of payment of fine six months' RI.
In the present case facts of the prosecution case may be summarized as under:
That on 26.09.2012 at 8.25 PM at GRP Faizabad on the basis of recovery memo, chick FIR was scribed, case crime no. 63 of 2012, under Sections 489-B & 489-C IPC was registered and requisite entry was made in the report of the general diary. According to the recovery memo, SI Brijesh Kumar Singh, the then Station Officer, was on patrol duty at Railway Station, Faizabad along with a police party to prevent the commission of any crime, make search for criminals and unwanted elements and objectional articles. Thus received the information from the informer that two persons carrying counterfeit currency notes had come to the station and they were trying to pass off the counterfeit currency notes. When the police party lead by him reached near second class waiting room, in the passenger hall near ticket booking window, they saw two persons sitting on a cement slab and on the pointing out of the informer when those persons were spoken to, they ran towards west side, at about 5.05 PM they were arrested and disclosed their names as Ashfaque and Jaikam. Both resident of District Bharatpur (Rajsthan). They confessed that they had counterfeit currency notes which they were bringing from Farrkka (West Bengal) to Gurgaon (Haryana) by Farrakka Express. When they came to know that ahead checking was made, they deboarded there and were trying to pass off fake currency notes. When asked, no passenger consented to be a witness, they with due formality searched the accused persons, during search they recovered seven bundles of fake currency notes amounting to Rs.3,50,000/- wrapped in a cloth sheet from a plastic bag held by Ashfaque. Thereafter details of those notes were noted down. From the search of co-accused Jaikam from his right hand one cloth bag was taken and searched and from there fake currency notes of Rs.3,00,000/- were found wrapped in a Lungi. Details of these notes were also noted down. Recovery memo was prepared. Arrested persons along with seized property were deposited in the police station and the said case crime number was registered.
During the investigation the seized currency notes were sent for examination to Currency Printing Press, Nasik (Maharashtra), where the notes were found counterfeit. After investigation charge-sheet was submitted.
The appellants were charged by the Court of Session, under Sections 489 (Kha) and 389 (Ga) IPC. The appellants denied the charges and claimed to be tried.
In order to prove the charges on behalf of the prosecution in documentary evidence, besides other papers Recovery Memo Ext. Ka-1, Memo Ext. Ka-2, Ka-3, FIR Ext. Ka-4, Copy of Report Ext. Ka-5, Report Ext Ka-6 and Site Plan & Currency Note Press Report Ext. Ka-8, Ka-9 & Ka-10 were filed. In the oral evidence five witnesses were examined. Thereafter statements of the appellants were recorded under Section 313 CrPC wherein they denied the facts stated by the prosecution witnesses. According to them, they were falsely implicated due to enmity. According to appellant-Ashfaque on 26.09.2012 by Marudhar Express he was going to Varanasi, at Railway Station, Faizabad GRP personnel de-boarded him, they took his ticket and Rs.30,000/- cash and locked him in the lockup. After many requests he was released but when he demanded money back the Station Officer got annoyed and framed him in the present matter. According to appellant Jaikam, he was also going in the same manner and he was falsely implicated in the present case. The only variation in his statement is that from him Rs.25,000/- were taken.
After hearing the arguments the learned trial Judge convicted the appellants and sentenced them as above.
We have heard Sri Raj Baksh Singh, learned counsel for the appellants and Ms. Ruhi Siddiqui, learned A.G.A. for the State and perused the record.
On behalf of the appellants it has been submitted that learned trial Judge has wrongly believed the prosecution case, no recovery was made from the possession of the appellants. No independent witness has been examined on behalf of the prosecution. He further submits that according to the prosecution version only fake currency notes were recovered from the possession of the appellants, their use has not been even alleged by the prosecution. The conviction of the appellants under Section 489-B IPC is itself bad in law.
On behalf of the State these arguments have been repelled.
Before entering into the merits of the appeal, we would like to recall the observation made by the Apex Court in the case of Ishvarbhai Fuljibhai Patni Vs. State of Gujarat [1995 Supreme Court Cases (Crl) 222] whereby duties of the appellate court have been outlined. Para-4 of the judgment reads as under:
"4. Since, the High Court was dealing with the appeal in exercise of its appellate jurisdiction, against conviction and sentence of life imprisonment, it was required to consider and discuss the evidence and deal with the arguments raised at the bar. Let alone, any discussion of the evidence, we do not find that the High Court even cared to notice the evidence led in the case. None of the arguments of the learned counsel for the appellant have been noticed, much less considered and discussed. The judgment is cryptic and we are at loss to understand as to what prevailed with the High Court to uphold the conviction and sentence of the appellant. On a plain requirement of justice, the High Court while dealing with a first appeal against conviction and sentence is expected to, howsoever briefly depending upon the facts of the case, consider and discuss the evidence and deal with the submissions raised at the bar. If it fails to do so, it apparently fails in the discharge of one of its essential jurisdiction under its appellate powers. In view of the infirmities pointed out by us, the judgment under appeal cannot be sustained."
In the case of Lal Mandi, Appellant v. State of West Bengal, Respondent [1995 CRI.L.J.2659 (Supreme Court), 2659], the Apex Court in para-5 of the report has given the caution to the High Court reminding its duty in the matter of hearing of appeal against conviction. It would be gainful to reproduce the observation made in para-5 of the report, extracted below:
"5. To say the least, the approach of the High Court is totally fallacious. In an appeal against conviction, the Appellate Court has the duty to itself appreciate the evidence on the record and if two views are possible on the appraisal of the evidence, the benefit of reasonable doubt has to be given to an accused. It is not correct to suggest that the "Appellate Court cannot legally interfere with" the order of conviction where the trial court has found the evidence as reliable and that it cannot substitute the findings of the Sessions Judge by its own, if it arrives at a different conclusion on reassessment of the evidence. The observation made in Tota Singh's case, which was an appeal against acquittal, have been misunderstood and mechanically applied. Though, the powers of an appellate court, while dealing with an appeal against acquittal and an appeal against conviction are equally wide but the considerations which weigh with it while dealing with an appeal against an order of acquittal and in an appeal against conviction are distinct and separate. The presumption of innocence of accused which gets strengthened on his acquittal is not available on his conviction. An appellate court may give every reasonable weight to the conclusions arrived at by the trial court but it must be remembered that an appellate court is duty bound, in the same way as the trial court, to test the evidence extrinsically as well as intrinsically and to consider as thoroughly as the trial court, all the circumstances available on the record so as to arrive at an independent finding regarding guilt or innocence of the convict. An Appellate Court fails in the discharge of one of its essential duties, if it fails to itself appreciate the evidence on the record and arrive at an independent finding based on the appraisal of such evidence."
Recovery Officer Brijesh Kumar Singh P.W.1 has supported the prosecution version and proved the recovery memo Ext. Ka-1. He has identified the case property including plastic bag, cloth bag, cloth sheet and Lungi, material Exts. 1 to 5 (four articles wrongly exhibited as five). He has also identified bundles of fake currency notes recovered by him.
Sub Inspector Rajendra Prasad Misra, P.W.2 was a member of the force lead by Sri Brijesh Kumar Singh P.W.1 at the relevant date and time. He also supported the prosecution version.
Head Constable Ram Bujhawan Chaudhary P.W.3 is the scribe of chick FIR. He has proved chick FIR Ext. Ka-4 and other police papers.
Sub-Inspector Sudhakar Pandey P.W.4 is the IInd Investigating Officer, who gave details of the steps taken by him in the course of investigation. He has proved the charge-sheet Ext. Ka-7.
Sub Inspector Hari Shankar Prajapati P.W.5 is the Ist Investigating Officer, who gave details of steps taken by him during the course of investigation and proved the site plan Ext. Ka-8.
In the statement of Brijesh Kumar Singh P.W.1 and Sub Inspector Rajendra Prasad Misra P.W.2, certain discrepancies have been pointed out on behalf of the appellants. It is admitted fact that no two police personnel can perceive, retain in memory and describe the same actually in the same language whatever they had perceived together. Considering this human factor we think the indicated discrepancies cannot be made basis to reject the prosecution evidence.
Both these witnesses have signed the recovery memo, their departure for patrolling stood corroborated by the report of the general diary, their presence at the relevant place, time and date cannot be doubted upon. During cross-examination no major contradiction had occurred. Merely on the basis of non examination of independent witness we cannot reject the testimonies of these two witnesses. More so, when reason for not taking independent witness have been mentioned in the recovery memo, we find that learned trial Judge has rightly believed them.
From the report of the Currency Printing Press, Nasik (Maharashtra) Ext. Ka-5, it also stands proved that the recovered currency notes were counterfeit. From the evidence of these two witnesses recovery of these fake notes from the possession of the appellants also stands proved, thus, we notice that conviction of the appellants under Section 489-C IPC has been rightly made by the learned trial Judge.
On behalf of the appellants their conviction and sentence under Section 489-B IPC has been challenged on the basis that mere possession would not be enough to convict them under Section 489-B IPC. On behalf of the appellants in support of this argument following cases have been referred.
1. K. Hasim Vs. State of Tamil Nadu [2005(1) Supreme Court Cases 237]. In paras 48 and 49 of the report difference between the ingredients constituting offence punishable under Sections 489-B & 489-C IPC have been enumerated. We can refer these two paras gainfully for our consideration, they read as under:
"48.Similarly Section 489 B relates to using as genuine forged or counterfeited currency notes or bank notes. The object of Legislature in enacting this section is to stop the circulation of forged notes by punishing all persons who knowing or having reason to believe the same to be forged do any act which could lead to their circulation.
49.Section 489C deals with possession of forged or counterfeit currency notes or bank notes. It makes possession of forged and counterfeited currency notes or bank notes punishable."
2. Umashanker Vs. State of Chhattisgarh [2001 (9) Supreme Court Cases 642]. In support of his argument learned counsel for the appellants has placed reliance on para 7 of the report, which reads as under:
"7. Sections 489-A to 489-E deal with various economic offences in respect of forged or counterfeit currency-note or bank-notes. The object of Legislature in enacting these provisions is not only to protect the economy of the country but also to provide adequate protection to currency-notes and bank-notes. The currency-notes are, in spite of growing accustomedness to the credit cards system, still the backbone of the commercial transactions by multitudes in our country. But these provisions are not meant to punish unwary possessors or users."
3. M. Mammutti Vs. State of Karnataka [1979 (4) Supreme Court Cases 723]. This case has been referred in support of the argument that the appellants were not specifically asked about their knowledge whether recovered currency notes were fake or not.
The learned Additional Government Advocate has submitted that possession of fake currency notes of Rs.3,50,000/- by appellant Ashfaque and Rs.3,00,000/- by appellant Jaikam is in itself an evidence that they were carrying the fake notes to use them as genuine. He has further submitted that failure of the appellants to explain such huge recovery from their possession is also an evidence that the appellants had mens rea to use fake currency notes as genuine.
In support of his argument, learned Additional Government Advocate has referred the provisions contained in Sections 106 and 114(h) of the Evidence Act. Before proceeding further we would like to reproduce the provisions contained in Sections 106 and 114(h) of the Evidence Act, they read as under:
Section 106 - When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
Section 114. The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
The court may presume-----
114(h)-that if a man refuses to answer a question: which he is not compelled to answer by law, the answer, if given, would be unfavourable to him."
To elaborate the thrust of the argument advanced by the learned Additional Government Advocate is that it was for the appellants to explain how they come in possession of counterfeit currency notes and they had no knowledge that those are counterfeit notes.
The case law referred by the learned counsel for the appellants is of no help to the appellants because here the question is whether conviction of the appellants in addition to Section 489-C IPC in Section 489-B IPC is legal or not ? None of the cases referred by him throws any light on this point as against that we find that the evidence of recovery of counterfeit currency notes from the appellants is relevant and admissible in this reference also. Simple discovery of counterfeit notes from the appellants does not stand proved from the evidence of recovery but also their knowledge and their state of mind that is knowledge about fake currency is also established from that evidence. On this point our view stand fortified by the explanation given by the Apex Court in the case of State of Maharashtra Vs. Damu Gopi Nath Shinde and others [AIR 2000 SC 1691] wherein Apex Court has observed as under:
"36. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature, but if it results in discovery of a fact it becomes a reliable information. Hence the legislature permitted such information to be used as evidence by restricting the admissible portion to the minimum. It is now well settled that recovery of an object is not discovery of a fact as envisaged in the section. The decision of the Privy Council in Pulukuri Kottaya v. Emperor AIR 1947 PC 67 is the most quoted authority for supporting the interpretation that the "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect.
37. No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered". But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. In this case, the fact discovered by PW 44 is that A-3 Mukinda Thorat had carried the dead body of Dipak to the spot on the motorcycle.
38. How did the particular information led to the discovery of the fact? No doubt, recovery of dead body of Dipak from the same canal was antecedent to the information which PW 44 obtained. If nothing more was recovered pursuant to and subsequent to obtaining the information from the accused, there would not have been any discovery of any fact at all. But when the broken glass piece was recovered from that spot and that piece was found to be part of the tail lamp of the motorcycle of A-2 Guruji, it can safely be held that the Investigating Officer discovered the fact that A-2 Guruji had carried the dead body on that particular motorcycle up to the spot.
39.In view of the said discovery of the fact, we are inclined to hold that the information supplied by A-2 Guruji that the dead body of Dipak was carried on the motorcycle up to the particular spot is admissible in evidence. That information, therefore, proves the prosecution case to the abovementioned extent."
After dealing with this whether the appellants had possessed the necessary mens rea, the second aspect is whether recovery of large number of counterfeit currency notes are sufficient to establish that their possession amounts to an offence punishable under Section 489-B IPC. This section prohibits use of or trafficking with the counterfeit currency notes. Since the appellants had preferred to plead total denial,they had not cared to explain as to why such currency notes were in their possession though according to provisions contained in Section 106 of the Evidence Act the burden was on them to explain it. Their failure to do so raises an adverse inference against them and for such inference we conclude that their possession was not mere conscious possession, they meant either to use the counterfeit currency notes or transport them. In the case of Rayab Jusab Sama Vs. State of Gujarat [1999 Cri. L. J. 942] the Division Bench of Gujarat High Court has held the possession of large number of fake currency notes to be a case of active transportation of such notes. The observation made by the Division Bench in that case also substantiates the view formed by us. Para-10 of the report reads as under:
10.The learned counsel for the appellant contended that the prosecution had failed to prove the offence under S. 489-B of the Indian Penal Code even if it is held that the offence of possession the fake currency notes under S.489-C is proved. This submission is wholly erroneous because the evidence clearly establishes that the appellant was found carrying 250 fake currency notes on a public road in the city of Bhuj concealed in a Thela beneath cloth pieces as alleged in the charge. He was, therefore, transporting the said currency notes at the time when he was apprehended with them. Therefore, this is not a case of mere dormant possession, but, it is a case of active transportation of the currency notes, which would fall within the expression 'traffics in such currency notes.' Section 489-B of the Indian Penal Code clearly contemplates the cases where the counterfeit currency notes are received from any other person as also the cases where a person traffics in such currency notes knowing or having reason to believe the same to be forged or counterfeit. In our opinion, these ingredients of the offence under S.489-B are clearly established against the appellant. He was not only carrying 250 counterfeit currency notes on 9.4.1996 but he had concealed 101 other such counterfeit currency notes which he later discovered before the Panchas on 12.4.1996. It is, therefore, clearly established that the appellant was trafficking in these counterfeit currency notes which he had received from some source. The appellant is, therefore, rightly held guilty of the offences under Ss. 489-B and 489-C of the Indian Penal Code by the trial Court and we are in complete agreement with the reasoning adopted by the trial Court for reaching its conclusions on this count. We are not concerned in this appeal, as noted above, with the offences under the Passport Act for which the accused was acquitted."
In view of above we come to the conclusion that the arguments to challenge the conviction of the appellants under Section 489-B IPC also fail and charge against the appellants under Section 489-B IPC stands proved beyond reasonable doubt.
Here we would like to see and explain that though we are in agreement with the findings recorded by the learned trial Judge that the possession and trafficking of the counterfeit currency notes against the present appellants are established beyond doubt and they have been rightly convicted under Sections 489-B & 489-C IPC but from this juncture we disagree with the learned trial Judge that both the appellants should have been punished on both counts. The offence punishable under Section 489-B IPC is a major offence and offence punishable under Section 489-C IPC is a minor offence. When a person is convicted and sentenced under Section 489-B IPC his conviction under Section 489-C IPC has been held to be not warranted in law. A person cannot be punished twice for the same offence. After convicting the appellants the learned trial Judge should have punished the appellants only for one offence i.e. major offence. In a similar case Justice K.S. Hegde (as His Lordship then was) speaking for the Division Bench of Mysore High Court, has observed in para 33 of the report that if a person has been convicted under Section 489-B IPC, his conviction under Section 489-C IPC becomes redundant vide V. Govindrajalu and others Vs. State of Mysore 1962 (2) Cri. L. J. 765].
In view of above we come to the conclusion that we would like to affirm the conviction of the appellants under Section 489-B and 489-C IPC but we would like to set aside the sentence awarded to the appellants under Section 489-C IPC.
The appellants have been awarded imprisonment for life under Section 489-B IPC. It is true that the offence punishable under Section 489-B IPC is punishable with imprisonment for life or with imprisonment for a term which may extend to ten years. In this way, imprisonment for life is the maximum sentence which could be awarded under Section 489-B IPC. Now we have to see whether learned trial Judge has rightly exercised his discretion while sentencing the appellants, we have perused the reasons recorded by him to award maximum sentence. The learned trial Judge has noticed that trafficking in counterfeit currency notes jeopardize the economic condition of the country, it indicates that the appellants had connection with international criminals and terrorist organizations. When we have perused the whole of the record but we could not find any material which shows that the appellants were connected with international criminals or with terrorist organizations. To this extent we find the reasoning of the learned trial Judge is erroneous. Appellant Ashfaque was aged about 25 years and appellant Jaikam was aged about 28 years, keeping in view their age we think that in the present matter imprisonment for life is very harsh sentence because it means the appellants will remain confined in jail till the end of their natural lives that too on the basis of conjectures and surmises. It is their first conviction, their age also persuades us to reduce their sentence, the Hon'ble Apex Court in the case of Samir Mustafabhai Bajariya vs. State of Gujarat decided on 26.04.2013 has reduced the rigorous punishment awarded under Section 489-B IPC from 8 years to almost 4 years but in the present case a large number of fake currency notes have been recovered, in such situation, we think instead of imprisonment for life, imprisonment of ten years RI would serve the ends of justice. To this extent appeals deserve to be allowed.
Accordingly, both the appeals are partly allowed. The conviction of the appellants under Sections 489-B & 489-C IPC is affirmed and their sentences awarded under Section 489-C are set aside. Sentence of imprisonment for life awarded under Section 489-B IPC are altered to undergo rigorous imprisonment of ten years.
To the aforesaid extent the impugned judgment and orders of the trial court dated dated 10.02.2014 passed in Sessions Trial No. 16 of 2013 [State Vs. Ashfaque and another] are modified.
Office is directed to certify this order to the court concerned forthwith for compliance and to send back the lower court record.
[Pratyush Kumar,J] [S.V.S. Rathore,J]
Order Date :- February 23rd, 2016
Prajapati