Bangalore District Court
The State Of Karnataka vs No.1 : Anand Ashoka Mantharo @ Ananda on 6 May, 2016
IN THE COURT OF THE LI ADDL. CITYF CIVIL &
SESSIONS JUDGE AT BENGALURU CITY. (CCH 52)
Dated this the 6th day of May 2016
PRESENT:
Sri G.D.Mahavarkar, M.A., LL.B (Spl),
M.L. (Lab & Indstrl Rlns & Adm. Laws),
LL.M (Business Laws), M.Phil-in-Law
(Juridical Science)
LI Addl. City Civil & Sessions Judge, Bengaluru City.
S.C.No. 301/2008
Complainant : The State of Karnataka,
Represented by it's
The Police Inspector,
Subramanyanagar Police Station,
(C.A.Squad, COD)
Bengaluru City.
(By Public Prosecutor)
Vs.
Accused No.1 : Anand Ashoka Mantharo @ Ananda
Mantharo @ Ashok @ Prakash @
Prashanth,
S/o. Francies Mantharo,
Aged 30 years,
R/a. Karopadi House, Vijayadka,
Dakshina Kannada District.
Accused No.2 : Abdul Rasheed Hassainar Putturu
(Produced under @ Abdul Rasheed @ Abdul Hameed,
Body-warrant) S/o. Ahamed Hassainar,
Aged 33 years,
R/a. Mugali House, Kaarapodi Village,
Buntwala Taluk,
Dakshina Kannada District.
(By Sri Rajesh Rai K.
Advocate, for A.1 & A.2)
2 SC No.301/2008
1 Date of commission of offence 31.10.2006
2 Date of report of offence 08.11.2006
3 Date of arrest of the accused 25.04.2007 = A.1
A.2 is produced under Body-
warrant. (in judicial custody in
some other case)
4 Date of release of accused on bail 05.05.2007 = A.1
28.07.2010 = A.2
Date of commencement of evidence 13.08.2010
6 Date of closing of evidence 07.11.2012
7 Name of the complainant M. Eshaq, Senior Intelligence
Officer, DRI.
8 Offences complained of Sections 419, 420, 468, 489(B),
489(C) & 120(B) r/w Section 34
I.P.C.
9 Opinion of the Judge Guilt of the accused persons not
proved
10 Order of Sentence As per final order
JUDGMENT
This is a charge-sheet filed by the Police Inspector of Subramanyanagar Police Station, (CA Squad, COD), Bengaluru City, leveling the charges against the above said accused persons for the commission of the offences punishable U/Secs.419, 420, 468, 489(B), 489(C) & 120(B) r/w Section 34 of I.P.C. in the committal I ACMM Court, Bengaluru City, in it's CC No.26340/2007 in connection with the Subramanyanagar P.S. Cr.No.233/2006.
2. The epitomized facts of the allegations that are leveled against the above said accused persons in the charge-sheet run thus:
On 31.10.2006, at about 1.00 p.m. in the afternoon, in front of ISCON Temple on West of Chord Road, Bengaluru City, within the jurisdiction of Subramanyanagar police station, the accused 3 SC No.301/2008 No's.1 & 2 along-with other accused persons in-furtherance of common intention, the accused No.1 having obtained a parcel and possessed the same containing the fake-currency-notes worth of Rs.7,00,000/- with the denominations of Rs.1,000/- and Rs.500/-
sent by the accused No.2, pretending and posing himself by the accused No.1 as one S. Prakash for the purpose of receiving the same with a common intention to use the same as genuine notes at the instigation of the accused No.2 and others who were also party to the illegal-agreement having made the criminal conspiracy for the purpose of possessing the said forged and counterfeit currency-notes for their circulation so as to cheat the public and Government and thereby, the accused persons committed the offences punishable U/Secs.489(B), 489(C), 419, 468, 420 & 120(B) r/w Section 34 of I.P.C.
3. After filing the charge-sheet, cognizance of the offences punishable U/Secs.419, 420, 468, 489(B), 489(C) & 120(B) r/w Section 34 of I.P.C. was taken by I ACMM Court, Bengaluru City.
In response to the process issued against the accused persons, accused No.1 has put-in his appearance before the trial court, through his learned counsel, whereas the accused No.2 was in judicial custody.
On moving for bail, the accused No.1 has been released on bail, as per the vide order dated 05.05.2007 in Cr.No.233/2006 by 4 SC No.301/2008 the then I ACMM, Bengaluru City, and the accused No.2 has been released on bail, as per the vide order dated 28.07.2010 in SC No.301/2008 before this court. Later-on, accused No.2 is being secured under body-warrant from Cr.No.25/2016 of S.R.Puram police station in Chittoor District, with UTP No.2523.
Copies of the charge-sheet and other documents referred to U/Sec.173 of Cr.P.C. were supplied to the accused persons by the I ACMM Court, Bengaluru City, in contemplation with the provisions U/Sec.207 of Cr.P.C. and thereafter committed the case to this court in contemplation with the provisions U/Sec.209 of Cr.P.C.
After committing the case to this court by the I ACMM Court, Bengaluru City, the notices were issued to the accused persons and secured their presence before this court.
After hearing both sides, charges for the offences punishable U/Secs.419, 420, 468, 489(B), 489(C) & 120(B) r/w Section 34 of I.P.C. were framed, and the same were read-over, and explained to the accused persons in the vernacular best-known to them.
The accused persons have denied the same and pleaded not guilty and further claimed to be tried.
4. In order to prove the guilt against the accused persons, the prosecution has adduced the evidence of the witnesses, in all as PWs.1 to 22, and placed it's reliance on the documents marked at Exs.P.1 to P.47, P.1(a), P.1(b), P.1(c), P.1(d), P.2(a), P.2(b), P.3(a), 5 SC No.301/2008 P.3(b), P.3(c), P.3(d), P.4(a) - number skipped, P.4(b), P.4(c), P.5(a) - number skipped, P.5(b), P.5(c), P.6(a) - number skipped, P.6(b), P.6(c), P.7(a), P.7(b), P.7(c), P.8(a), P.8(b), P.8(c), P.15(a), P.15(b), P.15(c), P.18(a), P.18(b), P.21(a), P.21(b), P.22(a), P.22(b), P.22(c), P.23(a), P.23(b), P.23(c), P.23(d), P.24(a), P.25(a), P.25(b), P.26(a), P.26(b), P.27(a), P.27(b), P.28(a), P.28(b), P.29(a), P.29(b), P.31(a), P.33(a), P.34(a), P.35(a), P.36(a), P.36(b), P.37(a), P.42(a), P.43(a) and P.44(a) and the material objects marked on behalf of the prosecution are at MO No's.1 to 44.
5. After the prosecution's evidence was closed, since the incriminating circumstances were arising-out of the evidence of the prosecution witnesses, the statements of the accused persons under the provisions U/Sec.313 of Cr.P.C., were recorded.
6. I have heard the arguments advanced by both the learned Public Prosecutor for the State as-well-as the learned counsel for the accused persons.
7. Now, the points that arise for my consideration are:
(1) Whether the prosecution proves beyond the shadow of all the reasonable doubts that, on 31.10.2006, at about 1.00 p.m. in the afternoon, in front of ISCON Temple on West of Chord Road, Bengaluru City, within the jurisdiction of Subramanyanagar police station, the accused No.1 having common intention, obtained a parcel containing fake-currency-notes from Hallmark Cargo 6 SC No.301/2008 Services, sent by the accused No.2, with an intention to use the same as genuine, knowing that the same are counterfeit currency-notes of Rs.1,000/- & Rs.500/- denominations, and thereby, the accused persons committed the offence punishable U/Sec.489(B) r/w Section 34 of I.P.C.?
(2) Whether the prosecution further proves beyond the shadow of all the reasonable doubts that, on the above said date, time and place, the accused No.1 having common intention was found in possession of counterfeit currency-notes, worth of Rs.7,00,000/- with the denominations of Rs.1,000/- & Rs.500/-, intending to use the same as genuine at the instigation of the accused No.2, and thereby, the accused persons committed the offence punishable U/Sec.489(C) r/w Section 34 of I.P.C.?
(3) Whether the prosecution further proves beyond the shadow of all the reasonable doubts that, on the above said date, time and place, the accused No.1 having common intention pretended and posed himself as one S. Prakash for the purpose of receiving the parcel containing counterfeit currency-notes from the courier office, and thereby, the accused persons committed the offence punishable U/Sec.419 r/w Section 34 of I.P.C.?
(4) Whether the prosecution further proves beyond the shadow of all the reasonable doubts that, on the above said date, time and place, the accused No.1 having common intention intended to use the forged and counterfeit currency-notes for the purpose of 7 SC No.301/2008 cheating, and thereby, the accused persons committed the offence punishable U/Sec.468 r/w Section 34 of I.P.C.?
(5) Whether the prosecution further proves beyond the shadow of all the reasonable doubts that, on the above said date, time and place, the accused No's.1 & 2 having common intention, being the party to the illegal-agreement, made a criminal conspiracy and in pursuance of the said conspiracy, the accused No's.1 & 2 possessed several counterfeit currency-notes for the purpose of circulation, so as to cheat the public and Government, and thereby, the accused persons committed the offence punishable U/Sec.420 r/w Section 34 of I.P.C.?
(6) Whether the prosecution further proves beyond the shadow of all the reasonable doubts that, on the above said date, time and place, the accused No's.1 & 4 having common intention, being the party to the illegal-agreement, made a criminal conspiracy and agreed to do the illegal act by possessing the counterfeit currency-notes for circulation, and thereby, the accused persons committed the offence punishable U/Sec.120(B) r/w Section 34 of I.P.C.?
(7) What order?
8. My findings on the above said points are as under:
Point No.1 .. In the Negative.
Point No.2 .. In the Negative.
Point No.3 .. In the Negative.
Point No.4 .. In the Negative.
Point No.5 .. In the Negative.
Point No.6 .. In the Negative.
8 SC No.301/2008
Point No.7 .. As per the final order,
for the following:
REASONS
9. Prior to harping-upon the merits of the case, it would be pertinent to note make it clear at this point of juncture itself that, earlier the charge-sheet has been submitted by the investigating officer only against the accused No's.1 & 2 before the committal court with a specific note in the charge-sheet by the investigating officer that, he would be filing the separate charge-sheet against the accused No's.3 to 6; But, unfortunately, the case appears to have been committed against all the accused No's.1 to 4 as per the order-sheet dated 11.02.2008 of the committal court. When the said instant charge-sheet not being against the accused No's.3 & 4 except the accused No's.1 & 2 having been committed to this court by the committal court, this court has also all the while dealt with and recorded the evidence on merits, whereby all the while the accused No's.1 to 4 have appeared and contested. When the case was posted for arguments on merits, having noticed the said aspect by virtue of the submissions made by the learned counsels for the accused persons, on scrutinizing the entire case-file meticulously, this court has already passed a specific vide order- sheet dated 06.11.2015 dropping the accused No's.3 & 4 from the proceedings under the instant charge-sheet which is filed only against the accused No's.1 & 2 with a better clarification that, the 9 SC No.301/2008 said order does-not come in the way of the separate proceedings against the accused No's.3 & 4, if the separate charge-sheet is filed or is going to be filed by the investigating officer hereinafter in- furtherance, wherefore, the instant case continues only against the accused No's.1 & 2.
10. Accordingly, with these observations, the instant case is taken-up for disposal on merits only against the accused No's.1 & 2, at this point of juncture. With these clarifications, now it would be appropriate to marshal on merits of the case.
11. Point No's.1 to 6:- To avoid reiteration of material available in hand and to appreciate the evidence in better position, I hereby take-up Point No's.1 to 6 together admixingly for discussion.
12. It is the specific tale of the prosecution that, on 31.10.2006, at about 1.00 p.m. in the afternoon, in front of ISCON Temple on West of Chord Road, Bengaluru City, within the jurisdiction of Subramanyanagar police station, the accused No's.1 & 2 along-with other accused persons in-furtherance of common intention, the accused No.1 having obtained a parcel and possessed the same containing the fake-currency-notes worth of Rs.7,00,000/- with the denominations of Rs.1,000/- and Rs.500/- sent by the accused No.2, pretending and posing himself by the accused No.1 as one S. Prakash for the purpose of receiving the 10 SC No.301/2008 same with a common intention to use the same as genuine notes at the instigation of the accused No.2 and others who were also party to the illegal-agreement having made the criminal conspiracy for the purpose of possessing the said forged and counterfeit currency-notes for their circulation so as to cheat the public and Government and thereby, the accused committed the offences punishable U/Secs.489(B), 489(C), 419, 468, 420 & 120(B) r/w Section 34 of I.P.C.
13. At the very outset, the absolute burden of proving the alleged imputations against the accused persons is casted-upon the prosecution alone in pursuance with the provisions under the Indian Evidence Act, 1872.
14. To substantiate it's case, the prosecution has got examined in all PWs.1 to 22, in which CW.2 is examined as P.W.1 who is Senior Intelligence Officer of DRI having raided the accused No.1, CWs.4, 3, 5, 6 & 10 are examined as PWs.5 to 9, respectively, who are the Intelligence Officers of DRI, who had accompanied the P.W.1 for the raid purpose; CWs.7 & 8 are examined as PWs.2 & 3, respectively, who are the seizure-mahazar panchas, who had accompanied the PWs.1, 5 to 9 for the raid purpose; CW.1 is examined as P.W.4 who is the Senior Intelligence Officer of DRI as-well-as the complainant; CW.9 is examined as P.W.10 who is also the Intelligence Officer of DRI having assisted 11 SC No.301/2008 the P.W.4 for further investigation purpose; CW.13 is examined as P.W.11 who is the Senior Intelligence Officer as-well-as partial investigating authority; CW.12 is examined as P.W.12 who is a cargo-worker as-well-as circumstantial witness; CW.14 is examined as P.W.13 who is a cargo-marketing and supervisor as- well-as hearsay witness; CW.11 is examined as P.W.14 who is also the cargo-worker as-well-as search and seizure-mahazar witness; CW.20 is examined as P.W.15 who is the circumstantial witness whose driving-licence was forged and misused by the accused No.1; CW.16 is examined as P.W.16 who is the RTO as-well-as circumstantial witness; CW.22 is examined as P.W.17 who is also the RTO as-well-as circumstantial witness; CW.15 is examined as P.W.18 who is the cargo delivery boy; CW.24 is examined as P.W.19 who is the driver of cargo delivery tempo; CW.28 is examined as P.W.20 who is the police Head-Constable having carried the sealed-cover, model-seal, report with invoice given by the CW.27 to Nasik Currency-Notes Printing-Press as-well-as circumstantial witness; CW.30 is examined as P.W.21 who is the investigating officer of the initial portion of the investigation and CW.32 is examined as P.W.22 who is the investigating officer of the remaining portion of the investigation and thereby, the prosecution has placed it's reliance on the documentations marked at Exs.P.1 to P.47, in which Ex.P.1 is the mahazar, Ex.P.1(a) is the signature 12 SC No.301/2008 of the P.W.1, Ex.P.1(b) is the signature of the P.W.2, Ex.P.1(c) is the signature of the P.W.3, Ex.P.1(d) is the signature of the P.W.6, Ex.P.2 is the annexure, Ex.P.2(a) is the signature of the P.W.1, Ex.P.2(b) is the signature of the P.W.3, Ex.P.3 is the annexure, Ex.P.3(a) is the signature of the P.W.1, Ex.P.3(b) is the signature of the P.W.3, Ex.P.3(c) is the signature of the P.W.5, Ex.P.3(d) is the signature of the P.W.7, Exs.P.4 to P.7 are the annexures, Ex.P.4(a)
- number skipped, Ex.P.4(b) is the signature of the P.W.3, Ex.P.4(c) is the signature of the P.W.5, Ex.P.5 is the Annexure, Ex.P.5(a) - number skipped, Ex.P.5(b) is the signature of the P.W.3, Ex.P.5(c) is the signature of the P.W.5, Ex.P.6 is the Annexure, Ex.P.6(a) - number skipped, Ex.P.6(b) is the signature of the P.W.3, Ex.P.6(c) is the signature of the P.W.5, Ex.P.7 is the Annexure, Ex.P.7(a) - number skipped, Ex.P.7(b) is the signature of the P.W.3, Ex.P.7(c) is the signature of the P.W.5, Ex.P.8 is the annexure, Ex.P.8(a) is the signature of the P.W.1, Ex.P.8(b) is the signature of the P.W.3, Ex.P.8(c) is the signature of the P.W.8, Ex.P.9 is the Hall Mark Cargo receipt, Ex.P.10 is the Airport Authority receipt, Ex.P.11 is the TR Challan, Ex.P.12 is the service receipt, Ex.P.13 is the lady- photo, Ex.P.14 is the gas-receipt, Ex.P.15 is the own-handwriting statement of the accused No.2, Ex.P.15(a) is the signature of the P.W.1, Ex.P.15(b) is the signature of the accused No.2/Rasheed, Ex.P.15(c) is the signature of the P.W.5, Ex.P.16 is the statement of 13 SC No.301/2008 Paramesh, Ex.P.17 is the statement of the P.W.3, Ex.P.18 is the complaint, Ex.P.18(a) is the signature of the P.W.4, Ex.P.18(b) is the signature of the P.W.21, Exs.P.19 & P.20 are the authorization- letters, Ex.P.21 is the mahazar, Ex.P.21(a) is the signature of the P.W.4, Ex.P.21(b) is the signature of the P.W.9, Ex.P.22 is the mahazar, Ex.P.22(a) is the signature of the P.W.4, Ex.P.22(b) is the signature of the P.W.12, Ex.P.22(c) is the signature of the P.W.14, Ex.P.23 is the annexure to mahazar, Ex.P.23(a) is the signature of the P.W.4, Ex.P.23(b) is the signature of the P.W.10, Ex.P.23(c) is the signature of the P.W.12, Ex.P.23(d) is the signature of the P.W.14, Ex.P.24 is the arrest-memo, Ex.P.24(a) is the signature of the P.W.4, Ex.P.25 is the statement of Smt. Sunitha W/o Jaganath, Ex.P.25(a) is the signature of the P.W.4, Ex.P.25(b) is the signature of the P.W.6, Ex.P.26 is the statement of Mahadevan, Ex.P.26(a) is the signature of the P.W.4, Ex.P.26(b) is the signature of the P.W.6, Ex.P.27 is the mahazar, Ex.P.27(a) is the signature of the P.W.5, Ex.P.27(b) is the signature of the P.W.22, Ex.P.28 is the statement of Mallikarjuna, Ex.P.28(a) is the signature of the P.W.5, Ex.P.28(b) is the signature of the P.W.11, Ex.P.29 is the statement of the accused No.1, Ex.P.29(a) is the signature of the P.W.5, Ex.P.29(b) is the signature of the P.W.11, Ex.P.30 is the signature of the P.W.7, Ex.P.31 is the mahazar, Ex.P.31(a) is the signature of the P.W.7, Ex.P.32 is the statement of the P.W.8, Ex.P.33 is the 14 SC No.301/2008 statement of the accused No.1, Ex.P.33(a) is the signature of the P.W.11, Ex.P.34 is the statement of M.H.Yaragudi, Ex.P.34(a) is the signature of the P.W.13, Ex.P.35 is the requisition of the police- letter, Ex.P.35(a) - number skipped, Ex.P.36 is the letter of RTC, Ex.P.36(a) is the signature of the P.W.16, Ex.P.36(b) is the photo of Bhuvaneshwari, Ex.P.37 is the extract of driving-licence issued by the RTO - Mangalore, Ex.P.37(a) is the signature of the P.W.17, Ex.P.38 is the xerox copy of Run Sheet, Ex.P.39 is the xerox copy of unloading receipt, Ex.P.40 is the statement of M.S.Mallikarjuna S/o Maheshwarappa, Ex.P.41 is the portion of the statement in Ex.P.40, Ex.P.42 is the First Information Report, Ex.P.42(a) is the signature of the P.W.21, Exs.P.43 & P.44 are the opinion-letters, Ex.P.43(a) is the signature of the P.W.22, Ex.P.44(a) is the signature of the P.W.22, Ex.P.45 is the currency-report and Exs.P.46 & P.47 are the currency-notes reports, and the material objects marked on behalf of the prosecution are at MO No's.1 to 44, in which MO No's.1 to 3 are the 3 bundles (each-bundle containing 100 notes) of 300 notes of face-value of fake-currency notes of Rs.1,000/-, MO No's.4 to 11 are the 8 bundles (each- bundle containing 100 notes) of 800 notes of face-value of fake- currency notes of Rs.500/-, MO No.12 is the driving-licence of Prakash, MO No.13 is the driving-licence of Ananda Mantharo/accused No.1, MO No.14 is the DCB Visa-Card, MO 15 SC No.301/2008 No.15 is the credit-card of UTI Bank, MO No.16 is the credit-card of ICICI Bank, MO No.17 is the Arogya-Card of Manipal Hospital, MO No.18 is the 4 sim-cards (2 Airtel sim-cards, 1 BSNL sim-card and 1 Hutch sim-card), MO No.19 is the 3 sim-cards of Hutch company, MO No's.20 to 22 are the 3 mobile-phones, MO No.23 is the blanket, MO No.24 is 2 lungies, MO No.25 is the box containing a chocolate, MO No.26 is 6 Johnson Soaps, MO No.27 is 2 Almond packets, MO No.28 is 6 Lux Soaps, MO No.29 is 2 Pista packets, MO No.30 is the Johnson Baby Powder, MO No.31 is the Johnson Baby Lotion bottle, MO No.32 is the Johnson Baby Cream, MO No.33 is the Milk Powder Box, MO No.34 is the Captain Oats Box, MO No.35 is the Oster Chocolate Wafers Box, MO No.36 is the Lipton Carton Box, MO No.37 is the Baahar Washing Carton, MO No.38 is the Club Carton, Mo No.39 is the Club Original Carton, MO No.40 is the plastic-cover, MO No.41 is the Expert Carton, MO No's.42 to 44 are the three currency-notes of Rs.100/- denomination.
15. On meticulous perusal of the entire depositions of the PWs.1 to 22, it is crystal clear that, the P.W.1 being the Senior Intelligence Officer of DRI, Bengaluru, as-well-as he having raided the spot, has endeavored to depose in favour of the prosecution in his chief-examination to the effect that, on 31.10.2006, at about 12.00 in the afternoon, himself (P.W.1) and his colleague - 16 SC No.301/2008 Intelligence Officers along-with two panchas were watching near ISCON Temple after explaining the purpose of the said raid to them that, one Prakash would take delivery of a parcel from a van belonging to Hallmark Cargo Pvt. Ltd., and the said parcel was originally imported into India through Chennai Air Cargo and thereafter transported from Chennai to Bengaluru, vide Weight Bill No.245568 with marking on the parcel as G3-80 which contains fake Indian currency-notes. It is further stated that, at 1.00 p.m. in the afternoon, a van arrived at the said place, whereby one of the said Intelligence Officers got confirmed that the said van belonged to M/s. Hallmark Cargo Pvt. Ltd., and after 10 minutes, a person approached the said van and took delivery of a parcel, whereby himself (P.W.1) and his colleague - Intelligence Officers with the said panchas approached by raiding the said person and inquired him regarding his name and contents of the said parcel, for which the said person produced a driving-licence which revealed his name as S. Prakash and also the documents of one Airway Bill 0245568, dated 26.10.2006, which disclosed the name of consignor as D. Mahadevan of Chennai and consignee as S. Prakash of Bengaluru. Even the cargo booking order-cum-goods receipts disclosed the consignee address, import terminals storage and processing charges Receipt No.007773, dated 23.10.2006 and a TR 6 Challan No.72392, dated 23.10.2006 were also found with 17 SC No.301/2008 the said S. Prakash, who stated that he was instructed by one Dubai person to receive the said parcel containing the Indian currency-notes and on verifying the address of the said parcel, the said S. Prakash informed that the correct-address is Champakadhama Alur Road, Makali, Nelamangala Taluk, Bengaluru - 562 123, which belonged to his friend - Ms. Sunita Makali and he gave the address as No.131, 20th 'D' Main, 1st 'R' Block, Rajajinagar, Bengaluru - 560 010, and during the said inquiry, suddenly the said S. Prakash started running-away but after a short-distance, he slipped and fell-down, wherefore, the said Intelligence Officers chased him and apprehended him, wherefore, due to such commotion, public gathered there-at the spot and hence due to the reasons of security and safety examination, the said S. Prakash along-with the parcel which he had received and the witnesses together went to their DRI office at Indranagar, Bengaluru, and on verifying the said parcel at Indranagar DRI office, the said parcel having wrapped with Polysack of white and black checks with writings as DXP-2839, G- 380 a small slip of Hallmark Cargo Pvt. Ltd., sticked on the said Polysack which revealed the consignment No.245568 destination BLR (380) No. of pieces-1 and on opening the same, a cardboard carton having found inside, it contained a blanket on the top- portion and thereafter, the goods listed from No.1 to 17 mentioned 18 SC No.301/2008 in Annexure 'A' under the said blanket. It is further stated that, the goods from Sl.No.1 to 13 were declared and the goods at Item No.14 being a Lipton yellow label Tea carton and on opening the same, the Tea-powder pack in the said poly-pouch was found on the top, whereas, in the bottom of the said Tea carton, a newspaper bundle was found containing the fake-currency-notes of Rs.500/- denominations as detailed in the Annexure 'B-1', as per Ex.P.4. It is further stated that the goods listed at Sl.No.15 was a detergent powder carton of New Improved Bahar with FWA power containing a newspaper wrapper bundle, in which fake- currency-notes of Rs.1,000/- denominations were found as detailed in Annexure 'B-2', as per Ex.P.5. Further it is stated that, the goods listed at Sl.No.16 being carton of biscuits of club reduced fat cracker, contained one-rolled bundle wrapped in a newspaper containing the fake-currency-notes of Rs.500/- denominations as detailed in Annexure 'B-3', as per Ex.P.6. Further it is stated that, the goods listed at Sl.No.17 also being a biscuit carton of club cracker original contained a paper bundle, in which the fake-currency-notes of Rs.500/- denominations as detailed in Annexure 'B-4', as per Ex.P.7, were found. It is further stated that, on the reason to believe, he seized the said currency- notes as detailed in Annexure No's.B-1 to B-4, as per Exs.P.4 to P.7, which were with the face-value of Rs.7,00,000/-, for violating 19 SC No.301/2008 the Indian Customs Act, 1962 r/w Allied Acts and the said currency-notes were separately packed in pursuance with the said Exs.P.5 to P.7 in polythene-covers and thereafter put into the brown color covers with the superscription as FICM REOVERED FROM LIPTON YELLOW LABEL TEA CARTON, from NEW IMPROVED BAHAR with FWA POWDER CARTON, CLUB REDUCED FATC CARTON and Club Original Carton. Similarly, he seized the goods mentioned at Sl.No's.1 to 13 as they were liable for seizure under the Customs Act, which were the cartons used for concealing the FICN and the newspaper used for wrapping purpose and packed the same into a cardboard carton covers with a cloth and sealed with DRI seal and thereafter, the Intelligence Officers conducted the personal search of the said S. Prakash and recovered the documents and the things as enlisted under Annexure 'C', as per Ex.P.8 at the option of the said S. Prakash for his search before the Gazetted Officer, on which his signature is as per Ex.P.8(a). It is further stated that, one of the documents found with the S. Prakash being a driving-licence with his photographs disclosing the name as Anand Mantheiro, S/o. Francis Mantharo, and another document as Manipal Arogya Card in the name of Anand Ashok Mantheiro, in respect of which on inquiring him, the said S. Prakash stated that his actual name is Anand Ashok Mantharo and his native-address is Kutrapady House, Post 20 SC No.301/2008 Vijayadaka, Buntwal Taluk, Karnataka, with his residential Telephone No.08255-266906 and his driving-licence bears the number as DL-628/94/95 (A/165) and thereby the said S. Prakash admitted that he has taken the driving-licence in the name of S. Prakash, which is a fake-one for the purpose of using as a proof of identity for obtaining the mobile-connection. It is further stated that, the said S. Prakash informed regarding his name having appeared in the fake-currency case of Mohammed Hanief and therefore, he changed his name as S. Prakash. It is further stated that, on searching the said S. Prakash, a valet (purse) containing Indian currency of Rs.23,400/-, the same were seized as sale-proceeds of FICN and put in a green-color cloth bound cover and sealed with DRI seal and even the documents and things listed under Ex.P.8 have also been sealed in a green-cover with DRI seal by superscribing thereon, on which the witnesses and the Senior Intelligence Officer, Prakash @ Anand Ashok Mantheiro signed on the said sealed packages and documents and thereby drawing the said mahazar as per Ex.P.1 with it's annexure as per Ex.P.2 and Annexure 'B' as per Ex.P.3, on which his signatures are as per Exs.P.1(a) & P.1(b), respectively, ended by 5.30 p.m. in the evening on 31.10.2006. It is further stated by the P.W.1 that, the cargo booking receipt is as per Ex.P.9, charge- receipt issued by Airport Authority is as per Ex.P.10, TR 6 Challan 21 SC No.301/2008 is as per Ex.P.11. It is further stated by the P.W.1 that one Abdul Rashid Hassainar Puttur who was in the custody of Police Detection Crime-Branch - CID, Unit-I of Mumbai, was inquired by him (P.W.1) and recorded his voluntary-statements on 20.12.2006 which are in his own-handwriting as per Ex.P.15, on which his signature is as per Ex.P.15(b) and his (P.W.1) signature thereon is as per Ex.P.15(a). It is further stated by the P.W.1 that, as per the voluntary-statements of the accused No.2 as per Ex.P.15, he had given the said fake-notes with the denominations of Rs.500/- and etc., to one Mohammed Hanief and asked him to handover the same to one Ashok in Bengaluru and totally about Rs.3 Crores worth fake-notes were obtained by the said Abdul Rasheed/accused No.2 from Dubai and he was paying the genuine Rs.50/- for each Rs.100/- fake note. It is further stated by the P.W.1 that, he came to know that the said Abdul Rasheed/accused No.2 himself had sent the said Rs.7,00,000/- fake-currency-notes to the accused No.1/Anand Ashok Mantheiro. Further the P.W.1 has identified 3 bundles of fake-currency-notes with the denomination of Rs.1,000/- and 8 bundles of Rs.500/- denomination fake-currency-notes, and the said Rs.1,000/- denomination of 3 bundles are marked as per MO No's.1 to 3 and Rs.500/- denomination of 8 bundles are marked as per MO No's.4 to 11, totally amounting to Rs.7,00,000/- fake-notes. Further the 22 SC No.301/2008 P.W.1 has identified the driving-licence as MO No.12 and another driving-licence disclosing the name as Anand Mantheiro, as MO No.13, DCB Visa-card as MO No.14, UTI Bank credit-card as MO No.15, ICICI Bank credit-card as MO No.16, Manipal Hospital Arogya Card as MO No.17, a receipt for having got made the vehicle service in Tritan Motors as per Ex.P.12, a photo found with accused No.1/Anand Ashok Mantharo as per Ex.P.13, 4 sim-cards as per MO No.18 (in all 2 Airtel sim-cards, 1 BSNL sim-card and 1 Hutch sim-card), 3 sim-cards found with the accused No.1/Anand Ashok Mantheiro as MO No.19, gas-receipt as per Ex.P.14, 3 mobile-phones seized from accused No.1/Anand Ashok Mantharo as per MO No's.20 to 22. Even, the P.W.1 has identified the 17 other articles seized from the said parcel from the custody of accused No.1 and they are marked as per MO No's23 to 41, respectively, and he is capable of identifying the accused No.2 if shown to him.
16. Further the P.W.5 being another Intelligence Officer of Customs at DRI, Bengaluru, who is stated to have accompanied the P.W.1 for raid purpose, has also endeavored to depose in favour of the prosecution in his chief-examination to the effect that, on 31.10.2006, he has written the Annexure No's.B & B1 to B4 as per Exs.P.3 to P.7 in connection with the seized counterfeit currency-notes and thereafter, he has assisted for recording of 23 SC No.301/2008 statement of accused No.1/Anand Ashok Mantheiro on 01.11.2006 and also assisted for recording the statement of one Mallikarjuna i.e., CW.15 (P.W.18) on 31.10.2006 as per Ex.P.28, on which his signature is as per Ex.P.28(a) and statement of one Abdul Rasheed Hassainar Puttur/accused No.2, at Mumbai Jail on 20.12.2006 who was in custody of COD, Mumbai and the seizure-mahazar has been drawn in presence of him in DRI office as per Ex.P.27 on 11.04.2007, on which his signature is as per Ex.P.27(a). It is further stated by the P.W.5 that, the statement of accused No.1 is as per Ex.P.29, on which his signature is as per Ex.P.29(a) and the statement of accused No.2 being as per Ex.P.15, his signature is as per Ex.P.15(c) thereon, and the said Exs.P.3 to P.7 are being prepared by himself, on which his signatures are as per Exs.P.3(c) to P.7(c) and he has identified the accused No.1 and he is capable of identifying the accused No.2 if he is shown to him.
17. Further the P.W.6 being another Intelligence Officer of DRI, Bengaluru, who is stated to have accompanied the PWs.1 & 5 for the raid purpose, has also endeavored to depose in favour of the prosecution in his chief-examination to the effect that, on 31.10.2006 on receiving the specific information that one Sri Prakash would take delivery of a parcel from a van belonging to M/s. Hallmark Cargo Pvt. Ltd., Bengaluru, a transport company, and the said parcel being originally imported to India, through 24 SC No.301/2008 Chennai Air Cargo, and further transported from Chennai to Bengaluru by the said transport company under vide Way Bill No.245568 and in connection with which, he having accompanied with the PWs.1 & 5 and other Intelligence Officers were watching at West of Chord road, Bengaluru, and accordingly on trapping the said accused No.1, the said parcel found to be with the marking as G-380 containing fake Indian currency-notes which parcel having been taken by the said S. Prakash, Opposite to ISKON Temple and thereafter, their team seized the fake Indian currency-notes with the face-value of Rs.7,00,000/- and narrated the entire events in presence of the witnesses under a detailed seizure-mahazar as per Ex.P.1, which was drawn by him on the same date at DRI office and his signature on Ex.P.1 is as per Ex.P.1(d) and thereafter, he has assisted for recording the statement of one D. Mahadevan as per Ex.P.26 in his (D. Mahadevan) handwriting, on which his signature is as per Ex.P.26(b) and also assisted for recording the statement of one Smt Sunitha as per Ex.P.25, on which his signature is marked as per Ex.P.25(b) and he has identified the accused No.1.
18. Further the P.W.7 being another Intelligence Officer of DRI, Bengaluru, who is also stated to have accompanied the PWs.1, 5 & 6, has endeavored to depose in favour of the prosecution in his chief-examination to the effect that, on 25 SC No.301/2008 31.10.2006 he has prepared a list of fake-currency-notes as per Ex.P.3 in his office at Indranagar, Bengaluru, at the instructions of the P.W.1 and his signature on Ex.P.3 is as per Ex.P.3(d) and on the same day, he has typed the statement of accused No.1/Anand Ashok Mantheiro as per Ex.P.30, on which his signature is also appearing and the said Ex.P.30 is typed by the CW.13 (P.W.11) in presence of the P.W.1. It is further stated by the P.W.7 that, on 03.11.2006 he took the seized currency-notes to the Reserve Bank of India, Nrupathunga Road, Bengaluru, and on verifying the same, the RBI Authorities put the stamps on each of the said notes as fake-currency-notes and thereafter, he (P.W.7) brought-back the said bundles of fake-currency-notes to his office and produced before the Senior Intelligence Officer. It is further stated that, the entire proceedings have been reduced into writing under a mahazar drawn by him as per Ex.P.31, on which his signature is as per Ex.P.31(a) and thereby, he has identified the fake-currency- notes as per MO No's.1 to 11.
19. Further, the P.W.8 being another Intelligence Officer who is also stated to have accompanied the P.W.1 for the raid purpose, has endeavored to depose in favour of the prosecution in his chief- examination to the effect that, on 31.10.2006 he has typed the statement of CW.14 at DRI office, Indranagar, Bengaluru, as per Ex.P.32, on which his signature is appearing, and also prepared 26 SC No.301/2008 the Annexure 'C' as per Ex.P.8, on which his signature is as per Ex.P.8(c).
20. Further the P.W.4 being the Senior Intelligence Officer, DRI, Bengaluru, as-well-as the complainant, has endeavored to depose in favour of the prosecution in his chief-examination to the effect that, the CWs.2 to 4 were his colleagues at DRI, Indranagar, Bengaluru, and on 31.10.2006 he effected the search-mahazar of residential premises of one R. Sunitha at Bengaluru, as per Ex.P.21, on which his signature is as per Ex.P.21(a) and on 01.11.2006 he effected the search of residential premises of accused No.1/Anand Ashok Mantheiro at Rajajinagar, Bengaluru, and seized 3 notes of Rs.100/- denomination on the reasonable belief that they were fake Indian currency-notes along-with some other documents and effected the search mahazar as per Ex.P.22, on which his signature is as per Ex.P.22(a) and thereafter, on the same day, he has arrested the accused No.1/Anand Ashok Mantheiro and produced him before the Presiding Officer of Economic Offences Court, Bengaluru. It is further stated by the P.W.4 that, he has also recorded the statement of one R. Sunitha on 01.11.2006 as per Ex.P.25, on which his signature is as per Ex.P.25(a) and on 08.02.2006 he has recorded the statement of one Mahadevan under the provisions of Section 108 of Customs Act, whereby the said Mahadevan has given his statement in his 27 SC No.301/2008 own-handwriting in Tamil language as per Ex.P.26, on which his signature is as per Ex.P.26(a) and his colleague - Intelligence Officer/P.W.6 had assisted him and thereafter, he (P.W.4) has lodged a complaint against the accused No.1 at Subramanyanagar police station as per Ex.P.18, on which his signature is as per Ex.P.18(a). Further the P.W.4 has stated that, he was authorized by the Assistant Director of DRI, Bengaluru, to conduct the search and seizure both on 31.10.2006 & 01.11.2006 in the residential houses of R. Sunitha and accused No.1, respectively, under the authorization-letters as per Exs.P.19 & P.20, respectively, and even he has stated that, he is able to identify the 3 fake-notes with the denomination of Rs.100/- each seized by him under Ex.P.22, if they are shown to him.
21. Further the P.W.9 being the Intelligence Officer has endeavored to depose in favour of the prosecution in his chief- examination to the effect that, on 31.10.2006 he had been to the house of one R. Sunitha for the search of her house along-with the P.W.4 and assisted him and on searching the said house, they did- not find any information and documents, wherefore, the P.W.4 prepared a mahazar as per Ex.P.21 written by himself (P.W.9) and his signature thereon is as per Ex.P.21(b). It is further stated by the P.W.9 that, on 01.11.2006 he had been to the house of accused No.1/Anand Ashok Mantheiro situated at Rajajinagar, 28 SC No.301/2008 Bengaluru, to assist the P.W.4 and on searching the said house of accused No.1, they found a diary and it was seized under a mahazar.
22. Further the P.W.10 being the another Intelligence Officer, DRI, Bengaluru, has also endeavored to depose in favour of the prosecution in his chief-examination to the effect that, on 01.11.2006 he has prepared an annexure as per Ex.P.23 to the mahazar as per Ex.P.22 in his own-handwriting in connection with the documents found in the house of accused No.1 when himself had been to the said house of accused No.1 to assist the P.W.4 who searched and seized the said documents and his signature on Ex.P.23 is as per Ex.P.23(b).
23. Further the P.W.11 being the Senior Intelligence Officer has also endeavored to depose in favour of the prosecution in his chief-examination to the effect that, on 31.10.2006 the DRI Officers had brought a person to DRI office from ISKON Temple Road along-with a parcel for the purpose of inquiry and at that time, he being in the office and on opening the said parcel by the DRI Officers, Rs.7,00,000/- worth of fake-notes were found therein, in respect of which a seizure-mahazar was drawn by the DRI Officers and suggested him to record the statement of the said person and accordingly, in pursuance with the Section 108 of the Customs Act, he has recorded the statement of accused No.1 as 29 SC No.301/2008 per Ex.P.33, on which his signature is as per Ex.P.33(a) and the accused No.1 has also signed thereon the said Ex.P.33. It is further stated by the P.W.11 that, on the same-day, he has recorded the statements of the P.W.13 (CW.14) and P.W.18 (CW.15) as per Exs.P.34 & P.28, respectively, on which their signatures are as per Exs.P.34(a) & P.28(b), respectively, and on the next-day i.e., on 01.11.2006 he has recorded the another statement of accused No.1 as per Ex.P.29, on which his signature is as per Ex.P.29(b).
24. But, on meticulous consideration of the entire depositions of the PWs.1 & 4 to 11, it is no doubt that they being the DRI Intelligence Officers of Indranagar, Bengaluru, have endeavored to depose in favour of the prosecution in their respective chief-examinations as stated herein before supra. But, in the cross-examination by the learned counsel for the accused, the P.W.1 has clearly stated that, according to Section 102 of the Customs Act, if one Gazetted Officer arrests an accused, he has to be produced before another Gazetted Officer and further stated, he personally does-not know as to who received the information first. At another-point of interval, he has stated that, on 30.10.2006 the Additional Director gave the information to him on phone in the night in between 9.00 p.m. and 10.00 p.m. while he was in his house and the same information was passed on him to his 30 SC No.301/2008 subordinate-officers. On consideration of these two-versions of the P.W.1, at one-point of time he has stated that he does-not know personally as to who has received the information firstly and at another-point of time he has stated that on 30.10.2006 the Additional Director has given the information to him which indicates that the said Additional Director had received the information prior to him. Apart from the same, it is also stated by the P.W.1 that, he has not asked the said Additional Director as to how and when the said information was received. On consideration of these versions of the P.W.1, they are not consistently synchronizing but they are absolutely emanating in the fashion of overlapping creating the suspicious circumstances to the effect that the P.W.1 himself is not firm with his own- contentions.
25. It is further stated by the P.W.1 in the cross-examination that, until the accused No.1 was arrested, he was not knowing any details or information regarding the accused No.1, whereas, except the information as written in the mahazar, the Additional Director had not given any other information. It is pertinent to note that, admittedly, as per the very versions of the PWs.1 & 4, the said accused No.1 was arrested on 01.11.2006 by the P.W.4 but not on 31.10.2006 by him (Ex.P.1) and when that is so, as per the prosecution, the mahazar having been drawn on 31.10.2006 by 31 SC No.301/2008 him, how could it be possible for him to mention the alleged details of accused No.1 in Ex.P.1/mahazar if really he had no information and details with regard to the accused No.1 until he was arrested on 01.11.2006. Taking-into consideration these particular aspects through the mouth of the P.W.1 coupled-with Ex.P.l1, there was no chance for the P.W.1 to have the information and details of accused No.1 until the alleged arrest of accused No.1 by the P.W.4 on 01.11.2006. When that is so, it creates the absolute suspicious circumstance with respect to the information with regard to the accused No.1 mentioned in Ex.P.1 the alleged seizure-mahazar. This particular aspect has absolutely remained under the darkness without any clarification from the prosecution's side.
26. Further the P.W.1 has stated in his cross-examination that, he personally had seen the panchas to whom he had not issued any written-notices and they are the residents in the vicinity of Indranagar. Further, he has admitted to the effect that, if any article or object is to be seized, a mahazar is bound to be drawn on the spot as per the Customs Act and further volunteered that, if it is possible, it has to be drawn on the spot itself. But, the P.W.6 who is stated to have accompanied the P.W.1 for the raid purpose and also assisted in drawing the mahazar as per Ex.P.1, he has stated in his cross-examination to the effect that he did-not secure the panchas and he cannot recollect his memory as to 32 SC No.301/2008 whether panchas had accompanied them from their office on that day or otherwise. In addition to the same, the P.W.7 has stated in the cross-examination that, somebody had called the pancha- witnesses on that day in the office. It is pertinent to note that, the PWs.6 & 7 stated to be the Intelligence Officers having accompanied the P.W.1, they were unable to whisper regarding the securing of the panchas in pursuance with the versions of the P.W.1 because, as per the very versions of the P.W.6, he is unable to recollect his memory but when he is capable of recollecting and saying regarding the other alleged aspects in favour of the prosecution, how is it not possible for him to recollect his memory with regard to securing the panchas. Apart from the same, the P.W.6 himself has stated in the chief-examination itself that, the said seizure-mahazar was drawn by him on the same day at DRI office. According to the very version of the P.W.1, the said mahazar has been drawn by him. If that was to be so, then again the said version of the P.W.6 certainly stands absolutely contrary to the version of the P.W.1 creating the substantial suspicious circumstances with regard to the very genuinity of the said Ex.P.1/mahazar in the mind of this court. In addition to the same, as per the very version of the P.W.7, he has disclosed his ignorance in an evasive manner stating that, somebody had called panchas on that day in the office which clearly goes to create the suspicious 33 SC No.301/2008 circumstances as to whether the said panchas were taken to the alleged spot of incident or otherwise and also create the suspicious circumstances regarding the aspect as to how the P.W.7 having accompanied the P.W.1, does-not know as to who had called the said panchas.
27. It is further stated by the P.W.1 in the cross-examination that, in the said alleged spot of incident i.e., on the road, opposite to ISKON Temple in Rajajinagar, there was no much vehicle-traffic. But, the P.W.6 has stated in his cross-examination that, the said road was very busy and lot of devotees and the vehicles were going- on the said road. The said versions of the PWs.1 & 6 are emanating in contravention with each-other creating the doubt regarding the sufficient vehicle-traffic there-at on the road. It is also stated by the P.W.1 that, he did not call the public-persons since already they had taken the panchas along-with them and therefore, they did-not feel that there was any necessity of public- persons to call and to take assistance. But, the P.W.6 has stated in his cross-examination that, he did-not secure the pancha- witnesses. Therefore, in overall, it clearly goes to indicate by virtue of the versions of the P.W.1 that they had already taken the panchas along-with them, who were the residents in the vicinity of Indranagar, Bengaluru.
34 SC No.301/2008
28. It is significant to note that, admittedly, the said alleged panchas who are none-other than the PWs.2 & 3 were not the persons from local-area of the said spot of incident. In respect of this particular aspect, the learned counsel for the accused has placed his reliance-on a well-settled principle of law, reported in 1987 Cri.L.J. 1539 (Himachal Pradesh High Court), in a case between Smt. Prem Lata Vs. State of Himachal Pradesh, which reads thus:
"Criminal P.C. (2 of 1974), S.100(4) - Search - Independent and respectable persons easily available in locality - No efforts made by officer to call-upon search witnesses - Held because of non-compliance with S.100(4) accused is entitled to benefit of doubt. 1980 Cri.L.J. 923 (SC), Ref. (Para 6)"
29. Further, the learned counsel for the accused has placed his reliance-on a well-settled principle of law, reported in 1989 Cri.L.J. 1585 (A) (Madhya Pradesh High Court), in a case between State of Madhya Pradesh Vs. Ramprakash & Others; And Munnilal and etc., Vs. State of Madhya Pradesh, which reads thus:
"(A) Criminal P.C. (1974), S. 100(4), (8) -
Search and Seizure - Conduct of - Procedure for
- Witnesses - Two independent and respectable inhabitants of locality not called to witness search - Failure of prosecution to justify non- compliance with provisions of S.100(4) - Search and seizure vitiated."
30. Further, the learned counsel for the accused has placed his reliance-on a well-settled principle of law, reported in 1963(2) 35 SC No.301/2008 Cri.L.J. 454 (a) (Kerala High Court), in a case between State of Kerala Vs. Joseph & Another, which reads thus:
"(a) Criminal P.C. (1898), S. 103 - Search by police-witnesses taken from distant locality -
Only witness from locality not examined -
Presumptions arising from these circumstances
- Evidence Act (1872), S. 114, III. (g).
When respectable persons can be found in the neighbourhood and the police officer making a search takes with him persons whose respectability is questionable or who came from a distant locality, it may not be unjustifiable to presume that he was prompted by desire to have such witnesses as would be easily persuaded to support any story he might put forward. This suspicion is reinforced by the circumstance that the only man of the locality who has arrested is not cited as a witness : AIR 1951 Bom. 468, Rel. on. (Para 6) It being the bounden duty of the prosecution to examine a material-witness, not only does an adverse inference arise against the prosecution case from his non-production as a witness in view of illustration (g) to section 114 of the Evidence Act, but the circumstance of his being withheld from the court casts a serious reflection on the fairness of the trial : AIR 1954 SC 41 Rel. on. Para 6)"
31. On meticulous perusal of these particular settled principles of laws, it is crystal clear that, under the provisions of Section 100(4)(8) of Cr.P.C., if the search and seizure are required to be conducted, it is mandatorily required to secure two independent and respectable inhabitants of the locality and in case of non-compliance of Section 100(4) of Cr.P.C., then the accused is entitle to the benefit of such doubt. Therefore, in the instant case 36 SC No.301/2008 in hand, admittedly, the P.W.1 having not secured the two respectable and independent inhabitants of the locality of the alleged spot of incident, certainly it creates the fatal doubts regarding the drawing of the said seizure mahazars, as per Exs.P.1 to P.12.
32. Further the PWs.2 & 3 being the raid as-well-as seizure- mahazar witnesses have absolutely turned hostile to the prosecution by exhibiting their animus of hostility, for which the learned Public Prosecutor was inclined to cross-examine them; But, no worth-relying material has been extracted and elicited through their mouths; Wherefore, the prosecution has utterly failed to establish the Exs.P.1 to P.12, respectively, through the mouths of the PWs.2 & 3 beyond the shadow of all the reasonable doubts.
33. It is also pertinent to note that, the P.W.1 has stated in his cross-examination that, when they had been to the spot on the main-road in front of ISKON Temple, no police were there-at and he had no necessity of securing the local police-aid and therefore, he has not intimated the concerned local-police right-from taking the alleged parcel by the accused No.1 to his custody till the handing-over of the same to the P.W.4. It is quite interesting aspect to take note-of at this point of juncture that, the P.W.1 has further stated that, he had no any impediment or problem to 37 SC No.301/2008 secure the help of local-police. But, when the said parcel was received by the accused No.1 allegedly posing and pretending himself as one S. Prakash, he was caught-hold and inquired on the spot with respect to the documents possessing with him and by that time, the accused No.1 tried to run-away there-from the said alleged spot of incident, during which time the DRI Intelligence Officers chased and apprehended him and by that time, the public started assembling there-at, wherefore, from the view of security and safety, the said accused No.1 along-with the packed-parcel, returned-back to the DRI office, Indranagar, Bengaluru, along-with the panchas. It is significant to note that, at one-point of time, the P.W.1 has stated that, there was no necessity of securing the aid of local-police by intimating them and at another-point of interval, he has stated that, for the purpose of security and safety in view of the public having started assembling there-at, he could not draw the mahazar on the spot itself and therefore came back to the DRI office, Indranagar, Bengaluru, along-with accused No.1 and the said alleged parcel and the panchas. According to the later version of the P.W.1, it clearly goes to indicate that there was neither any security nor safety along-with the problem of law and order, which was likely to be emerged, wherefore, the local-police-aid though available to the P.W.1 if he had intimated them, he has not taken the aid of the police because, the P.W.1 himself has stated that, he 38 SC No.301/2008 did-not feel that there was necessity of local-police-aid. If that was to be so, then the question of emerging regarding the security and safety at the spot of incident and saying regarding the same by the P.W.1 later-on as stated herein before supra, does-not arise at-all. Therefore, the versions stated by the P.W.1 regarding the maintaining of safety and security, he took the accused No.1 along-with the parcel and panchas back to the DRI office, Bengaluru, does-not tantamount to be adhered-with any reality to believe and rely-upon the same, as it certainly creates the absolute suspicious circumstances in the mind of this court in respect of the reasons for he having not drawn the seizure-mahazar on the spot itself. Therefore, in this view also, it creates the substantial suspicious circumstances regarding the very genuinity of Exs.P.1 to P.12 in presence of the PWs.2 & 3 even in the DRI office, Indranagar, Bengaluru, without drawing the said mahazar and seizure as per Exs.P.1 to P.12 on the alleged spot of incident itself.
34. Further, the P.W.1 has stated in his cross-examination that, he was not knowing the registration number of the cargo- vehicle except as a vehicle in respect of he had inquired but he was not knowing regarding the RC number, and also regarding the ownership of the said vehicle and he has written in the mahazar only the information having received by him after commencement of drawing the said mahazar regarding the said vehicle. It is 39 SC No.301/2008 significant to note that, after coming over the said vehicle and inquiry, the mahazar will be commenced. But, I fail to understand as to how he got the information regarding the said cargo-vehicle after commencement of the mahazar. This particular aspect has absolutely remained under suspicious circumstances without any clarification.
35. Further the P.W.1 has stated in his cross-examination that, when they were near ISKON Temple on 31.10.2006, it was about 11.30 a.m. in the morning. But, the P.W.6 who is stated to have accompanied him has stated in his cross-examination contradictorily to the effect that, when they had reached the ISKON Temple, it was about 12.00 in the afternoon. These two versions of the PWs.1 & 6 are emanating in contravention with each-other creating the doubts in the mind of this court.
36. It is further stated by the P.W.1 that, on 31.10.2006 itself after mahazar, he has handed-over the case-file to the P.W.4 and therefore, he has not collected any information as to who had sent the said parcel. But, none of the witnesses including the PWs.4 to 11 have stated regarding the aspect as to who had sent the said parcel from Dubai.
37. Further the P.W.13 being the Cargo Marketing & Supervisor as-well-as hearsay-witness, has endeavored to depose in favour of the prosecution in his chief-examination to the effect 40 SC No.301/2008 that, he is working at Hallmark Cargo Services situated at Kudlu Gate, Hosur Main Road, Bengaluru, since last 8 years, and there are branches in Bengaluru, Chennai, Hydrabad, Pondicherry and Coimbatore of their office of the said Hallmark Cargo Services and there are 3 cargo delivery vans in Bengaluru branch, through which the articles will be delivered to their respective addresses on receiving under the cargo services and in case if the addressee is not staying in the said address and if such consignee produces the document regarding the change of his address, then they deliver the concerned articles and parcels to his changed address. Further the P.W.13 has stated that, there will be maintaining of the run-sheet in their office with respect to the address, phone- numbers and other details and etc., in connection with the consignor and consignee. It is further stated that, on 27.06.2006 they had received a parcel from Chennai branch, on which the address of one Prakash was mentioned, whereby on phoning the said Prakash, it was noticed that the said phone-number was wrong number and thereafter on getting confirmed from the Chennai branch having received the another phone-number, on speaking through the said new number, they came to know that their address is near Himalaya Drugs Company on Tumkur Road, for which they declined to render the service of delivery of the said parcel there-at, since there was no service to that area from their 41 SC No.301/2008 cargo services, wherefore the person who was speaking on the said phone from the other-end stated that he would come near ISKON Temple at Rajajinagar, Bengaluru, as-soon-as the parcel is brought there-at and accordingly, on 31.10.2006 the P.W.18/Mallikarjun, a cargo-delivery-boy of their cargo services along-with other staff sent the said parcel near ISKON Temple. It is further stated by the P.W.13 that, after handing-over the said parcel to a person who had asked and phoned to come there-at, the cargo-delivery- boy/P.W.18 - Mallikarjun phoned him and reported regarding the delivery of the said parcel. It is further stated by the P.W.13 that, on the same day night, the DRI Officers have recorded his statement in the DRI office as per Ex.P.34, in respect of having come the parcel and also taken the run-sheet and other documents, in which Hallmark Services receipt is as per Ex.P.9 and also identified the xerox-copy of run-sheet of cargo services.
38. Further the P.W.18, the cargo-delivery-boy though endeavored to depose in favour of the prosecution in his chief- examination with respect to the P.W.19, the driver of cargo- delivery-tempo was working along-with him and during the work of delivering the cargo/parcel under the cargo services as per the address and details provided by the consignors with the concerned receipt and run-sheet etc., but in respect of delivery of the parcel, he has disclosed his no knowledge and pleaded ignorance. In the 42 SC No.301/2008 similar way, the P.W.19 has also deposed before this court disclosing his animus of hostility similar to the hostility of the P.W.18, wherefore, the learned Public Prosecutor was inclined to treat them as hostile-witnesses and cross-examined them; But, no worth-relying material has been elicited and extracted through their mouths, wherefore, the prosecution has utterly failed to establish Exs.P.28, P.40 & P.41, respectively, beyond the shadow of all the reasonable doubts.
39. It is no doubt, the P.W.13 has stated that, he had heard regarding the delivery of the said parcel through the P.W.18 to the accused No.1. But, the said P.W.18 himself has absolutely turned hostile to the prosecution along-with the said alleged cargo-tempo driver i.e., the P.W.19. When that is so, whatever is stated by the P.W.13 that he was informed by the P.W.18 on phone regarding the delivery of the parcel to the accused No.1 near the ISKON Temple, holds no substantially established. In view of the said PWs.18 & 19 having turned hostile to the prosecution, the very deposition of the P.W.13 stood absolutely worthless in the lack of the substantial corroborative material.
40. Further the P.W.12 being the search and seizure- mahazar witnesses though endeavored to depose in favour of the prosecution in his chief-examination to the effect that, in the last- week of October 2006, the DRI Officers had called him as a pancha 43 SC No.301/2008 to a mahazar to their office and shown the fake-notes and wrote a mahazar and obtained his signature thereon in the said DRI office, during which time, the accused No.1 was present there-at; But, the said Officers did-not take him anywhere-else except writing regarding the fake-notes on the other few-documents, in the said mahazar as per Ex.P.22, on which his signature is as per Ex.P.22(b) and also obtained the signature on Ex.P.23, as per Ex.P.23(c) thereon and except the same, he does-not know anything-else and thereby turned hostile-partly, wherefore, the learned Public Prosecutor was inclined to cross-examine him with respect to the said Ex.P.23, the search and seizure-mahazar conducted at the house of the accused No.1 situated at Rajajinagar, Bengaluru; But, no worth-relying material has been elicited and extracted through the mouth of the P.W.12 with regard to Ex.P.23.
41. But, however, in the cross-examination by the learned counsel for the accused, he has clearly went-on responding and giving go-bye to his own-versions in his chief-examination and thereby stated that, he does-not know the contents of Ex.P.22 and he does-not know anything except showing the fake-notes by DRI Officers and the said Officers have obtained his two signatures at- once and the said mahazar was already written before he signed on it.
44 SC No.301/2008
42. On meticulous consideration of all these versions of the P.W.12 in his cross-examination by the learned counsel for the accused, it is crystal clear that, the greater-amount of suspicious circumstances creating the fatal doubts are shrouded around the said Exs.P.22 & P.23. When that is so, it is unsafe to rely on the very deposition of the P.W.12. Therefore, the prosecution has utterly failed to establish Exs.P.22 & P.23 through the mouth of the P.W.12 and therefore, the deposition of P.W.12 does-not come to the aid of the prosecution, in any way.
43. Further the P.W.14 being the search and seizure- mahazar stated to have been drawn in the house of the accused No.1, has endeavored to depose in favour of the prosecution in his chief-examination to the effect that, about 4 years back, he was working in Sindhu Cargo Services and at that time, the DRI Officers had called himself and P.W.12 (CW.12) as panchas at DRI office, Indranagar, Bengaluru, and shown the accused No.1 by name Anand Ashok Mantheiro and thereafter, they were taken to one house situated near ISKON Temple at Rajajinagar in Bengaluru. It is further stated by the P.W.14 that, they had gone to the said house along-with the DRI Officers and the accused No.1, where-at it was locked and thereafter, they got opened the said house by removing the lock through the accused No.1 and on searching the said house, they found a book, in which there was 45 SC No.301/2008 one cheque, one visiting-card and 3 notes with the face-value of Rs.100/- each and accordingly, the said DRI Officers took the same and returned-back to Indranagar office and obtained his signature in the DRI office on Ex.P.22, as per Ex.P.22(c). It is further stated by the P.W.14 that, his signature is as per Ex.P.23(d) on Ex.P.23 and when they had been near the house situated at Rajajinagar, it was at about 4.30 p.m. in the evening and he is capable of identifying the said seized notes.
44. But, in the cross-examination by the learned counsel for the accused, he has stated that the DRI Officers had not issued any written-notice to him, but he was sent by the P.W.12 (CW.12) to the DRI office and accordingly himself and the P.W.12 together went to DRI office at Indranagar in Bengaluru, on his own-vehicle, where-at the DRI Officers have not recorded his statement and also no personal and physically his body search was made. It is further stated by the P.W.14 in his cross-examination that, at about 4.15 p.m. in the evening, they left Indranagar DRI office in DRI office vehicle and he does-not know the number of the said vehicle, along-with the P.W.12. But, he has further stated that, he cannot say the specific address where they had been except saying behind ISKON Temple. It is further stated that, he cannot say the house number and cross of the road and etc. It is further stated by the P.W.14 that, he was standing outside the compound at that time 46 SC No.301/2008 and the remaining persons had been inside and thereafter, he directly went to his house and then on the very next-day, he had been to DRI office, where-at he had seen the note and visiting-card. It is pertinent to note that, at the very outset, on the same day neither the statement of the P.W.14 had been recorded nor he had entered-into the house of accused No.1 for the alleged search purpose along-with the Intelligence Officers. When that is so, it cannot be directly stated that the contents of Exs.P.22 & P.23 are absolutely true and correct synchronizing with the alleged search by the DRI Officers as nothing has taken place by way of search and seizure by the DRI Officers in presence of the P.W.14 inside the house of accused No.1, as he was standing outside the compound of the said house of the accused No.1, as per his own- version in the cross-examination. It is further stated by the P.W.14 that, he cannot say the contents of Exs.P.22 & P.23 due to the lapse of 5 years. It is further stated by the P.W.14 that, he has neither signed on the said notes nor put any special identification marks, but he has signed on both the said Exs.P.22 & P.23 in the DRI office itself. By virtue of these particular admissions given by the P.W.14, it is clear that no search and seizure-mahazars as per Exs.P.22 & P.23 have been drawn in the house of accused No.1 situated at Rajajinagar, Bengaluru. Therefore, by virtue of these particular indifferent versions of the P.W.14 in his cross- 47 SC No.301/2008 examination by the learned counsel for the accused, it creates the fatal doubts in the mind of this court regarding the very genuinity of Exs.P.22 & P.23 and no credibility can be adhered-to the very deposition of the P.W.14 to rely-upon in connection with Exs.P.22 & P.23, wherefore, under the circumstances prevailing herein, as the very deposition of the P.W.14 prevailing with the major discrepancies creating the fatal doubts in the mind of this court, the prosecution has utterly failed to establish Exs.P.22 & P.23 even through the mouth of the P.W.14.
45. It is no doubt, the PWs.5 to 8 have endeavored to depose in favour of the prosecution as stated herein before supra in their respective chief-examinations. But, they having been stated to have accompanied the P.W.1, they were unable to depose substantially in favour of the prosecution but their role appears to be absolutely in the minor-nature, wherefore, merely their depositions will not come to the aid of the prosecution independently unless the case of the prosecution is substantiated by the PWs.1 & 4.
46. As stated herein before supra, neither investigation in any manner has been conducted nor inquiry has been made by any of the DRI Officers as to from where exactly and who has sent the said parcel. It is no doubt, the P.W.4 has endeavored to depose regarding he having recorded the statement of one D. Mahadevan 48 SC No.301/2008 who is stated to have sent the said parcel. But, unless and until the seizure of the said parcel contents is being established by the prosecution with the independent corroborative evidence, the very statement of the said alleged D. Mahadevan, as per Ex.P.26 cannot be relied-upon.
47. It is further stated by the P.W.1 in his cross-examination that, the said alleged parcel was imported to India from the foreign-country and depending-on the concerned National Rules of Customs, the customs duty clearance will be made and then transported the said articles; But, he does-not know as to whether the customs duty clearance certificate has to be produced while importing any articles in India. It is pertinent to note that, when he is capable of saying that it depends on the rules pertaining to their concerned informations, I fail to understand as to how he is unaware of Essentiality of Indian Rules of Customs Duty Clearance Certificate. This particular version clearly goes to indicate that, the P.W.1 has endeavored to escape from the clutches of critical cross-examination. Apart from the same, he has clearly admitted that, whatever articles come as imported-articles into Indian Territory, it has to pass through the customs clearance, for which the said parcel of articles has to open and then verify. It is further stated by the P.W.1 in the cross-examination that, there are chances of becoming of doing unlawful again, even though there is 49 SC No.301/2008 customs clearance of such imported-articles. But, further he has stated that, after the customs clearance is made, clearance- certificate will be issued by the Customs Authorities concerned and in Chennai Air Cargo, the customs has been cleared-off with regard to the said dispatched parcel involved in the instant case and further admitted that the said parcel has been cleared-off with the customs-duty about 2-3 days prior to the raid, in respect of which he came to know later-on after the said raid and verified the documents in connection with the same. It is further stated by the P.W.1 that, according to the Customs Act, if the customs-duty clearance is made, such articles or commodities will not be unlawful; But, he has not inquired as to which officer has made the clearance of the said parcel since he was engaged in seizing of the articles, in respect of which he had raided. It is significant to note that, on overall consideration of these particular versions of the PW1, it clearly goes to indicate that the said alleged parcel was passed through the customs-duty section with a clearance- certificate and when that is so, as per the rules of customs in India, the said parcel was not unlawful. In so-far-as the version of the P.W.1 that there are chances of unlawfulness with regard to the commodities or articles even though customs-duty is cleared- off, it is for the prosecution to establish through the DRI Officers concerned; But, no worth-relying substantial material is placed on 50 SC No.301/2008 record to establish that the said parcel was unlawful-one. Because though it is an allegation of the prosecution that the said parcel was containing the fake Indian currency-notes with the face-value of Rs.7,00,000/- containing the said fake-notes with the denomination of Rs.1,000/- and Rs.500/-, the seizure itself has not been established by the prosecution because, the material- witnesses to the said alleged seizure-mahazars as per Exs.P.1 to P.12 i.e., the PWs.2 & 3 themselves have turned hostile to the prosecution, as stated herein before supra. When that is so, the question of the accused No.1 in possession of the said alleged fake- currency-notes itself is absolutely under suspicious circumstances.
48. In respect of the same, the learned counsel for the accused has placed his reliance-on a well-settled principle of law, reported in 1990 Cri.L.J. 215 (A) (Calcutta High Court), in a case between Madan Lal Sarma Vs. The State, which reads thus:
"(A) Penal code (45 of 1860), Ss.489 E and 489 C - Counterfeiting - Burden of proof - Mere possession of forged note does-not shift burden on accused to prove innocence - Knowledge or reason to believe that note was forged has to be proved.
Evidence Act (1872), S.101.
Under S.489B I.P.C., the burden is on the prosecution to prove that at the time when the accused was passing the note he knew that it was a forged one. The mere possession of it by him does- not shift the burden to the accused to prove his innocent possession of the forged note. Similarly, under S.489C, it is to be proved that the accused intended to use the forged or counterfeit currency- 51 SC No.301/2008 note as genuine or it might be used as genuine. It is for the prosecution to prove the circumstances which would irresistibly lead to the conclusion that the accused had the intention to introduce surreptitiously the note on the public. Thus knowledge or reason to believe that the note was forged has to be proved to fix the liability under Ss.489B and 489C. Unless it is found that the accused had the knowledge or reason to believe that the said questioned note was a forged one, the question of his palming it off as genuine could not arise." (Paras 5, 10)
49. Further, the learned counsel for the accused has placed his reliance-on a well-settled principle of law, reported in 1972 Cri.L.J. 292 (C) (Kerala High Court), in a case between Karim Kunju Vs. State, which reads thus:
"(C) Penal Code (1860), Section 489B - The offence currency is distributed as if it is genuine currency. (X-Ref:- under Section 489B is committed only when the false Section 489-C and S.420.)"
50. Further, the learned counsel for the accused has placed his reliance-on a well-settled principle of law, reported in Laws (Ker) - 2002-7-83 (High Court of Kerala), in a case between Kuttan Nadar Wilson Vs. State, which reads thus:
" Indian Penal code, 1860, S.489B And S.489C - Conviction Of The Appellant For The Offence Under Sections 489-B And 489-C Of The Indian Penal Code Is Unde Challengeprosecution Case Is That After Purchasing Four Thoshiba Anand Batteries Worth Rs.13.20 From The Shopaccused, Tendered A 100 Rupee Note, The Genuineness Of Which Was Suspected By The Shopkeeper. The Accused Immediately Tried To Get Back The Currency Note. In the Meantime, 52 SC No.301/2008 Sub-Inspector Of Police, Who Was Going Along The Road, Noticed A Commotion In Front Of The Shop And He Caught Hold Of The Accused Straightaway And After Preparing A Mahazar, Took Him To The Police Station And Registered The Case. Questions Raised - (!) Whether The Accused Has Committed The Offence Under Section 489-B Of The I.P.C. (2) Whether The Accused Has Committed The Offence Under Section 489-C Of The I.P.C. Held: The Evidence On Record Is Insufficient To Fix Knowledge On The Part Of The Accused With Regard To The Fake Nature Of The Currency Note. It Is To Be Remembered Here That The Accused Is A Manual Labourer Who Does-Not Appear To Be Even Literate. Whether He Could Identify By Appearance As To Whether M.O.1 Was Genuine Or Not Is Itself A Matter Of Conjecture, I Am Aware That In the Report Of The Expert, It Is Mentioned That The Thickness Of M.O.1 Varied From Genuine Currency In So Far As It Was Made Of "Double Paper". Whether From This An Ordinary Layman Could Acquire Knowledge That It Is A Fake Is A Matter Of Doubt. But, A Shopkeeper Who Comes Across Currency Notes Very Often In The Course Of His Commercial Activity, Whereas The Accused Is A Labourer Who Seldom Comes Across Such Currency Notes. It Is To Be Remembered Here That The Occurrence Took Place Way Back In 1983 When The Remuneration For A Day's Work Was Much Less Than Rs.100/-. In These Circumstances, I Am Of The View That The Accused Is At Least Entitled To Get The Benefit Of Doubt On The Aspect Whether He Had Knowledge That Mo.1 Was Actually A Fake Currency Note. There Was No Seizure Of Any Other Currency Note Or Any Other Material Which Could Have Been Used For The Purpose Of Making Fake Currency Notes In The Present Case. In These Circumstances, The Accused Is Certainly Entitled To Get The Benefit Of Doubt."
(Para 6 And 7) Ref: Umashankar V. State Of Chhattisgarh, 2001 3 Klt 681 53 SC No.301/2008
51. On meticulous perusal of these particular settled principles of precedent laws, it is clear that to invoke the penal provisions of Sections 489(E) & 489(C) along-with Section 489(B) of I.P.C., mere possession of forged-notes do-not shift the burden on the accused to prove his innocence, whereas, always the burden absolutely lies-upon the prosecution to prove that the said fake- counterfeit-notes were in possession of the accused with a knowledge or reason to believe that such notes were forged and with an intention to circulate the same as if the circulation of genuine-notes. But, in the instant case in hand, neither the possession of the said alleged fake-notes with the accused No.1 nor his intention to circulate the same knowing-fully-well that they are fake-notes with an intention to circulate the same as if the genuine-notes, have been established by the prosecution because, when the aspect of receiving of the said parcel by the accused No.1 itself is being failed to be established by the prosecution in view of the PWs.2, 3, 18 & 19 having turned hostile absolutely, the question of possession of the said alleged fake-notes with the accused No.1 does-not arise at-all and consequent-upon the same, the knowledge and intention of the accused No.1 to use the same unlawfully to circulate as if the genuine currency-notes, also does- not arise at-all.
54 SC No.301/2008
52. To put-into simple terms, the very possession and knowledge with respect to the alleged fake-notes having not been established by the prosecution, with the accused No.1 for the reasons stated herein before supra, the question of targeting the accused No's.1 & 2 does-not arise at-all. It is no doubt, the PWs.1 & 4 to 11 being the Intelligence Officers of the DRI office, Indranagar, Bengaluru, though endeavored to depose in favour of the prosecution in their respective chief-examinations, their mere depositions do-not come to the aid of the prosecution to convict the accused No's.1 & 2. In respect of this particular aspect, the learned counsel for the accused has pressed-into service that the alleged statements of the accused No's.2 & 1 as per Exs.P.15, P.29 & P.33, do-not deserve for relying and believing in the lack of substantial corroborative material from the prosecution's side.
53. In respect of the same, the learned counsel for the accused has placed his reliance-on a well-settled principle of law, reported in AIR 1956 Supreme Court 56 (A), in a case between Nathu Vs. State of Uttar Pradesh, which reads thus:
"Evidence Act (1 of 1872), S.3, S.30 -
Confessions of co-accused - Value.
Confessions of co-accused are not evidence as defined in S.3 and no conviction can be founded thereon, but if there was other evidence on which a conviction can be based, they can be referred to as leading assurance to that conclusion and for fortifying it. AIR 1952 SC 149 Foll. (Para 5) 55 SC No.301/2008
54. Further, the learned counsel for the accused has placed his reliance-on a well-settled principle of law, reported in 1992(1) Crimes 232 (Supreme Court of India), in a case between Chandra Kant Chiman Lal Desai Vs. State of Gujarat, in which it is held by their Lordships that "confession of an accused is not evidence in the ordinary sense of the term and it cannot be made the foundation of a conviction and it can only be used in support of other evidence."
55. Further, the learned counsel for the accused has placed his reliance-on a well-settled principle of law, reported in 2001 Cri.L.J. 1590 (B) (Andhra Pradesh High Court), in a case between Vanamala Jagadeswaraiah & another Vs. The Deputy Commissioner (Legal) Customs and Central Excise, Hyderabad, which reads thus:
" (B) Customs Act (52 of 1962), S.135, S.108 -
Prosecution for smuggling of gold - Proof -
Confessional statement of co-accused recorded under S.108 - Though admissible in evidence, cannot be used as substantive evidence as contemplated under S.30 of Evidence Act - No other evidence connecting accused with alleged offence - Proceedings liable to be quashed."
56. Further, the learned counsel for the accused has placed his reliance-on a well-settled principle of law, reported in 1992 Cri.L.J. 2102 (Madras High Court), In Re : Adham, which reads thus:
56 SC No.301/2008
"Penal ode (45 of 1860), S.489-C - Evidence Act (1 of 1872), S.25 - Possession of counterfeit currency notes - Conviction for, based on evidence of Inspector (Crimes) - Inspector stating that accused had accepted before him that he got counterfeit currency notes from stranger - Accused, however, stoutly denied having stated so - Statement made by accused to Inspector - Not admissible in evidence - Conviction said to be based no evidence -
Cannot stand". (Para 2)
57. Further, the learned counsel for the accused has placed his reliance-on a well-settled principle of law, reported in (2011) 12 Supreme Court Cases 298 (B), in a case between Nirmal Singh Pehlwan @ Nimma Vs. Inspector, Customs, Customs House, Punjab, which reads thus:
"B. Narcotic Drugs and Psychotropic Substances Act, 1985 - Ss.53 and 22 - Case of Customs Officer investigating and bringing accused for trial in a narcotics matter - Conviction under S.22, on basis of confession made by accused to Customs Officer - Held, such confession is hit by bar under S.25, Evidence Act, and therefore, not admissible - Conviction, held, thus not proper and reversed - Evidence At, 1872 - S.25 - Bar under - If available regarding confession made before Customs Officer under S.108, Customs Act - Determination of - Customs Act, 1962, S.108".
(Paras 8, 9, 15 and 16)
58. Further, the learned counsel for the accused has placed his reliance-on a well-settled principle of law, reported in (2010) 3 Supreme Court Cases (Cri) 748 (O), (P), (Q), (R), (S), (T), in a case 57 SC No.301/2008 between Noor Aga Vs. State of Punjab & Another, which reads thus:
"(O) Customs Act, 1962 - S.108 - Powers under - Matters for which may be exercised -
Held, enquiry under S.108 is for the purpose of Customs Act and cannot be used for the purpose of convicting accused under NDPS Act -
Narcotic Drugs and Psychotropic Substances Act, 1985, Ss. 35 and 54.
(P) Customs Act, 1962 - S.108 - Confession made under - Should be in consonance with Art.20(3) - Constitution of India, Art.20(3) - Criminal Trial - Confession.
(Q) Customs Act, 1962 - S.138-B -
Admissibility of statements made before officer duly authorized - Conditions for - Held, confessional statement of an accused cannot be made use of in any manner under S.138-B -
Criminal Trial - Confession.
(R) Customs Act, 1962 - S.138-B(1)(b) -
Object.
(S) Evidence Act, 1972 - S.24 - Retracted confession - When may be relied-on - Held, the same can be relied-on if made voluntarily -
Burden of proving voluntary nature of onfession is on prosecution - Criminal Trial - Confession - Retracted confession.
(T) Criminal Trial - Confession - If voluntary
- Determination of - Factors to be considered -
Language used in confession - Evidence Act, 1872 - S.24 - Customs Act, 1962 - Ss.108 and 138-B - Narcotic Drugs and Psychotropic Substances Act, 1985, S.54."
59. Further, the learned counsel for the accused has placed his reliance-on a well-settled principle of law, reported in AIR 1979 Supreme Court 705 (From : Bombay), in a case between Sevantilal 58 SC No.301/2008 Karsondas Modi Vs. The State of Maharashtra and another, which reads thus:
"Evidence Act (1 of 1872), S.24 - Offence under S.120-B Penal Code read with S.135 Customs Act - Evidence and Proof - Confession made to Customs Officer under coercion - Conviction cannot be sustained". Cri. A. No.222 of 1970, D/- 7-8-1973 (Bom), Reversed.
60. On meticulous perusal of all these settled principles of laws relied-upon by the learned counsel for the accused, it is crystal clear that though the confessional-statement of the accused U/Sec.108 of the Customs Act, 1962 is admissible in evidence, they cannot be used as substantive evidence as contemplated U/Sec.30 of the Indian Evidence Act, 1872, in the absence of other evidence connecting to the accused with the alleged offence and therefore, such confession of accused is not an evidence in the ordinary sense of term and it cannot be made the foundation for a conviction, but it can be used merely in support of other evidence and under such circumstances, the statement made by the accused before the Inspector/Authority/Customs Officer is absolutely not admissible in the evidence, wherefore, it cannot be based as evidence for the conviction.
61. As stated herein before supra, the prosecution having utterly failed to establish the alleged offences against the accused persons in the absence of substantial independent evidence and 59 SC No.301/2008 material, the very alleged voluntary-statements of the accused No's.2 & 1 as per Exs.P.15, 29 & P.33 certainly do-not come to the aid of the prosecution to seek for conviction against the accused No's.1 & 2.
62. Therefore, the entire deposition of the P.W.1 is absolutely prevailing with the major discrepancies with the contradictions creating the fatal doubts in the mind of this court, wherefore, the deposition of the P.W.1 does-not amount to be helpful to the prosecution, in any way.
63. Further, the P.W.4 though endeavored to depose in favour of the prosecution in his chief-examination as stated herein before supra, admittedly, he has lodged a complaint as per Ex.P.18. According to the prosecution's case, the entire incident of alleged raid and alleged seizure and etc., of the material-objects under a parcel-box from accused No.1 has taken place on 31.10.2006. But, on meticulous perusal of the said Ex.P.18, it is stated to be as a complaint dated 07.11.2006, whereas, it is registered on 08.11.2006 by the Police Inspector of Subramanyanagar police station, Bengaluru. On the face of record itself, there is a delay of 8 days in lodging the said complaint by the P.W.4. No recital in the said Ex.P.18 explicits the reason for the delay in lodging the same on 08.11.2006 with the delay of about 8 days. Even, the P.W.4 having a responsible Senior 60 SC No.301/2008 Intelligence Officer in DRI office, Indranagar, Bengaluru, having lodged the complaint as per Ex.P.18, has clearly admitted in his cross-examination by the learned counsel for the accused that, he has not mentioned any reason for the delay in lodging the complaint. Apart from the same, the P.W.4 has nowhere explicited or whispered the reason for delay in lodging the complaint. Therefore, it is clear that the said complaint lodged by the P.W.4 as per Ex.P.18 is absolutely delayed by 8 days inordinately without any giving reasons.
64. In respect of the same, the learned counsel for the accused has placed his reliance-on a well-settled principle of law, reported in AIR 1973 Supreme Court 501 (B) & (C), in a case between Thulia Kali Vs. The State of Tamil Nadu, which reads thus:
"(B) Criminal P.C. (1898), S.154 - Importance of the First Information Report - Delay in giving information.
First Information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral-evidence adduced at the trial. The importance of the report can hardly be overestimated from the standpoint of the accused. The object of insisting-upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the name of the actual culprits and the part played by them as-well-as the names of eyewitnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is 61 SC No.301/2008 a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained.
When an occurrence is not reported for more than 20 hours after the occurrence even though the police station is only two miles from the place of occurrence it is unsafe to base conviction upon the evidence.
(C) Evidence Act (1872), Section 114 - Non-
production of material witness by prosecution - Adverse inference - P.W. deposing that the ornaments recovered at the instance of the accused were kept by accused with T - Failure to examine T by the prosecution would make the Court draw an inference against the prosecution."
65. Further, the learned counsel for the accused has placed his reliance-on a well-settled principle of law, reported in 1971 Supreme Court Cases (Cri.) 313 (From Orissa High Court), in a case between Balakrushna Swain Vs. State of Orissa, which reads thus:
"Criminal Procedure Code, 1898 (5 of 1898) - Section 156 - Investigation - Delay in examining witnesses by the Investigating Officer.
Much reliance cannot be placed on the evidence of a witness when for no justifiable reason he was not examined by the investigating officer for a number of days particularly when the witness is found to be telling falsehood on material aspects of the case and tries to conform to the evidence of other witnesses.
Appeal allowed and conviction set-aside."62 SC No.301/2008
66. On meticulous perusal of these particular settled principles of laws, it is clear that the delay in lodging the complaint or First Information Report results into embellishment which is a creature of afterthought, wherefore, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version and if no evidence is from/by the investigating officer for the delay, then the benefit of such delay has to be extended to the accused as it would be unsafe to rely-on such delayed information. Therefore, under the circumstances prevailing herein in the instant case in hand, admittedly, the said alleged complaint as per Ex.P.18 having been lodged at an inordinate delay of 8 days from the date of alleged incident and raid stated to have taken place on 31.10.2006, without any justifiable and substantial reason for the said delay caused, it is absolutely fatal to the prosecution's case vitiating from it's very root.
67. It is further stated by the P.W.4 in his cross-examination itself that, he was neither present at the time of alleged mahazar and seizure as per Exs.P.1 to P.12 nor he has personally seized the same. But, he has recorded the statements of one R. Sunitha and also the statements of one D. Mahadevan, as per Exs.P.25 & P.26, respectively. But, in connection of the same, he has stated that there was an oral-instruction to him to conduct the search of 63 SC No.301/2008 residence of the said R. Sunitha and accordingly, he has conducted the search of the premises of the said R. Sunitha and the pancha-witnesses were brought by his Officers as per his instructions, to whom no notices were issued. Even, he has stated that, he did-not call neighbors of the said building R. Sunitha except one witness from the said building and no written-notice was issued to the said R. Sunitha before recording her statements though it is compulsory U/Sec.108 of the Customs Act and he has not endorsed at the bottom of the statements of R. Sunitha and D. Mahadevan that they are not bound to make such statements. It is further stated by the P.W.4 in the cross-examination that, while drawing the mahazar on 31.10.2006, the said accused No.1 was not in his custody and he was not arrested at the time of drawing the mahazar dated 01.11.2006 and the said accused No.1 has given his statement before his arrest. All these particular aspects which have come-out through the mouth of the P.W.4 are absolutely against the mandatory procedures under the law, wherefore, the entire approach of the P.W.4 in carrying-out the acts as stated by him in his deposition absolutely being contrary to the provisions of law, they again create the suspicious circumstances against the very crux of the prosecution's tale.
68. Further the P.W.5 has stated in his cross-examination that, his higher-authorities had not issued any authorization- 64 SC No.301/2008 letters to him. If that is so, how was it possible for him to record the alleged statement of accused No.2/Abdul Rasheed Hassainar Putturu who was at Mumbai jail on 20.12.2006, as per Ex.P.15. This particular aspect has absolutely remained under darkness without any clarification from the prosecution's side, wherefore, in view of the same, his deposition also does-not come to the aid of the prosecution, in anyway.
69. It is further pertinent to note that, the P.W.7 being another Intelligence Officer has stated in his cross-examination that, he has drawn the mahazar as per Ex.P.31 at RBI office, Nrupathunga Road, Bengaluru. But, he has clearly admitted that there was no any impediment for him to take the signatures of RBI Officers on the said mahazar, as per Ex.P.31. But, to substantiate the Ex.P.31, the witnesses to it have been neither cited as witnesses nor examined by the prosecution's side. Therefore, it is unsafe to rely-on the said Ex.P.31 also without substantiating the same through the witnesses to the said mahazar, as per Ex.P.31.
70. Further, the P.W.9 being the another Intelligence Officer having endeavored to depose in favour of the prosecution in his chief-examination, he has stated that he had accompanied the CW.1 (P.W.4) to search the house of accused No.1 and to seize a diary and draw the mahazar as per Ex.P.21. It is stated by the P.W.9 in his chief-examination itself that, the said Ex.P.1 is in his 65 SC No.301/2008 own-handwriting. But, in his cross-examination by the learned counsel for the accused, he has stated to the effect that he does- not remember to say as to what articles were found in the house of accused No.1, unless he looks-into the said mahazar and further he has stated fatally that the said Ex.P.21/mahazar drawn in the house of R. Sunitha is not in his own-handwriting. His said version is absolutely emanating in contravention with his own- version in his chief-examination, wherefore, it creates the absolute doubt in the mind of this court regarding the very genuinity of the said Ex.P.21/mahazar stated to have been drawn in the house of one R. Sunitha. Therefore, even the very deposition of the P.W.9 does-not come to the aid of the prosecution, in any way.
71. Even, the P.W.11 being the another Senior Intelligence Officer has stated in his cross-examination to the effect that, he had not gone to ISKON Temple for the said raid. But, it is the factum told to him by his higher-authorities and the mahazar has not been drawn in presence of him by the other colleague - DRI Officer. It is further stated by the P.W.11 in his cross-examination that, the accused No.1 was in the custody of DRI higher- authorities when he recorded his statements. But, further in the cross-examination he has stated that, he had taken the custody of accused No.1 at 5.00 p.m. in the evening on 31.10.2006. But, in the chief-examination he has stated that, he has recorded one- 66 SC No.301/2008 statement of accused No.1 on 31.10.2006 as per the instructions of his higher-authorities and another-statement on 01.11.2006 as per Exs.P.29 & P.33, respectively. But, the said versions of the P.W.11 in his chief-examination are emanating in contravention with his own-versions in his cross-examination creating the fatal doubts in the mind of this court, wherefore, again it creates the absolute suspicious circumstances with regard to the very genuinity of Exs.P.29 & P.33, wherefore, the very deposition of the P.W.11 does-not come to the aid of the prosecution.
72. Therefore, the depositions of the PWs.1 & 4 to 11 being all the Intelligence Officers of DRI office, Indranagar, Bengaluru, from the same office as the official witnesses, under the circumstances prevailing herein, they need to be considered as interested witnesses within themselves, in respect of which the learned counsel for the accused has placed his reliance-on a well- settled principle of law, reported in 2000 Cri.L.J. 430 (A) (Karnataka High Court), in a case between State of Karnataka Vs. Sheik Khader and another, which reads thus:
"(A) Evidence Act (1 of 1872), S.3 -
Appreciation of evidence - Interested witnesses
- Testimony of interested witnesses must be viewed with a high-degree of caution - Court must also look for independent corroboration." (Para 11) 67 SC No.301/2008
73. On meticulous perusal of this particular settled principle of law, it is clear that the court has to be very cautious to consider the testimony of interested witnesses in a high-degree and it has to look for the independent corroboration.
74. Apart from the same, the learned counsel for the accused has placed his reliance-on a well-settled principle of law, reported in (1995) 4 Supreme Court Cases 255 (B), in a case between Pradeep Narayan Madgaonkar & others Vs. State of Maharashtra, which reads thus:
"B. Criminal Trial - Witnesses - Official witness - Testimony of, cannot be discarded for that reason - But his evidence needs to be subjected to strict scrutiny and as-far-as- possible and should be corroborated in material particulars - On facts, evidence of official witnesses would not be acted-upon without there being any independent corroboration of their testimony.
The evidence of the official (police) witnesses cannot be discarded merely on the ground that they belong to the police force and are either interested in the investigating or the prosecuting agency. But prudence dictates that their evidence needs to be subjected to strict scrutiny and as-far-as-possible corroboration of their evidence in material particulars should be sought. Their desire to see the success of the case based on their investigation requires greater care to appreciate their testimony. In the present case, the police officials did-not join any independent witnesses of the locality and made an attempt to create an impression on the courts that both the witnesses were witnesses of locality and were independent knowing-fully-well that one of the witnesses was under their influence and available to them, as he had been joining the raids earlier also. The very fact that the police officers 68 SC No.301/2008 joined these witnesses in the raid creates a doubt about the fairness of the investigation". (Paras 11 and 12)
75. On perusal of this particular settled principle of law, no doubt the testimony of official-witnesses cannot be discarded merely for the reason that they are official-witnesses, but their evidence need to be subjected to the strict scrutiny as-far-as possible and should be corroborated in material particulars, whereas, evidence of such official-witnesses would not be acted- upon without there being any independent corroboration of their testimony.
76. Similarly, in the instant case in hand, there is no independent substantial material either by way of evidence or documentations to corroborate the very depositions of the PWs.1 & 4 to 11, wherefore, their depositions need to be scrutinized with a greater-amount of caution. But, their depositions being worthless in view of major discrepancies prevailing therein, without any substantial corroborations, ultimately the accused No's.1 & 2 do- not deserve for targeting for conviction, in respect of which the learned counsel for the accused has placed his reliance-on a well- settled principle of law, reported in 2009(2) Crimes 468 (SC) (From Allahabad High Court), in a case between State of Uttar Pradesh Vs. Mangal Singh & Others, in which their Lordships have held 69 SC No.301/2008 that "conviction cannot be based on evidence having major discrepancies."
77. Further the P.W.15 being the circumstantial witness who is none-other than a lady, of whom stated to have forged and misused the driving-licence by accused No.1, has endeavored to depose in favour of the prosecution in her chief-examination to the effect that, her residential-address is No.40, 4th Cross, Malleshwaram, Bengaluru - 3, and she had the four-wheeler vehicle driving-licence, which was issued by Yeshwanthapura RTO office in 2000 and about 6-7 years back, she had lost the said driving-licence somewhere-else; But, thereafter, some unknown person phoned her regarding her driving-licence having found, wherefore, she sent her labour near Hallimane and obtained the said her lost driving-licence who ultimately brought and handed- over to her, as the said driving-licence was handed-over to the Manager of the said Hotel Hallimane. It is further stated by the P.W.15 that, in respect of the same, the COD police had taken her driving-licence and compared and stated that someone had misused and forged her driving-licence. It is further stated by the P.W.15 that, her driving-licence is No.KA-04-F-132-2000, in which her date of birth is mentioned and it is valid for the period from 04.04.2000 to 09.07.2016. But no challenge and no cross- examination has been made by the learned counsel for the 70 SC No.301/2008 accused, whereas, it has been taken as nil, since they remained absent.
78. Further the P.W.16 being the RTO as-well-as the circumstantial witness has also endeavored to depose in favour of the prosecution in his chief-examination to the effect that, from June 2006 to September 2008 he was working as ARTO in Yeshwanthapura RTO office, Bengaluru North, and on 16.04.2007 he having received the articles from Subramanyanagar police station with respect to the details pertaining to the driving-licence No.KA-04-F-132-2000 in the name of S. Prakash @ Srinivas, wherefore, on scrutinizing and verifying the documents as-well-as the computer available in his office, he has issued an endorsement-letter as per Ex.P.36, on which his signature is as per Ex.P.36(a) stating that the said licence has been issued in the name of one Smt. Bhuvaneshwari @ Ramaa Sukumaran and the relevant-portion in the said Ex.P.36 is marked as per Ex.P.36(b). It is further stated that, thereafter the police shown to him another driving-licence as per MO No.12, in respect of which no document was available in his office and it was not issued from their office. But, the entire deposition of the P.W.16 has been remained unchallenged and without cross-examination, since the learned counsel for the accused has remained absent.
71 SC No.301/2008
79. Further the P.W.17 being another RTO as-well-as the circumstantial witness has also endeavored to depose in favour of the prosecution in his chief-examination to the effect that, he was working as ARTO in the RTO office at Mangalore from 22.05.2006 to 20.06.2010 and on 15.10.2007 the Police Inspector had requested the details of the driving-licence issued in the name of Anand Mantheiro as per Ex.P.37, on which his signature is as per Ex.P.37(a).
80. Further the P.W.20 being the Head-Constable having carried the sealed-cover, model-seal and report with invoice given by CW.27 to the Nasik Currency-Notes Printing-Press as-well-as the circumstantial witness has endeavored to depose in favour of the prosecution in his chief-examination in respect of the same.
81. Further the P.W.21 being the investigating officer of the initial-portion of investigation, has endeavored to depose in favour of the prosecution in his chief-examination to the effect that, from 2006 to 2008 he was working as Police Inspector in Subramanyanagar police station, Bengaluru City, and on 08.11.2006, at about 8.30 p.m. in the night, while he was on duty as SHO, the CW.1 (P.W.4) came to the police station and lodged a typed-complaint before him, basing on which he has registered the Cr.No.233/2006 and dispatched the original-First Information Report as per Ex.P.42 along-with the said original-complaint as per 72 SC No.301/2008 Ex.P.18 to the court and also the copies of the same to his higher- authorities for information and his signatures on the said Exs.P.18 & P.42 are as per Exs.P.18(b) & P.42(a), respectively, thereon and thereafter handed-over the entire case-file to the CID police, Bengaluru, for further investigation.
82. Further the P.W.22 being the investigating officer of the subsequent major-portion of the investigation has endeavored to depose in favour of the prosecution in his chief-examination to the effect that, earlier from March 2007 to November 2007 he was working as Police Inspector in CID, Bengaluru, during which time he having received the case-file from CW.31 for further investigation, on 11.04.2007 he visited the office of DRI, Indranagar, Bengaluru, and obtained the already seized articles and material-objects for further investigation, by drawing a separate mahazar and thereafter recorded the statements of the DRI Officers, such as, CWs.1 to 6 & CWs.9 to 24 and additional statements of CWs.2 & 4 and thereafter got converted the said seized fake-notes and other material-objects under PF No.1/2007 and thereafter sent the seized fake-notes to the Nasik Currency- Notes Printing-Press for expert's opinion under the letters as per Exs.P.43 & P.44, on which his signatures are as per Exs.P.43(a) & P.44(a) and thereafter obtaining the opinion of the said Printing- Press expert's with the reports as per Exs.P.45 to P.47 submitted 73 SC No.301/2008 the charge-sheet against the accused No's.1 & 2 before the committal court. It is further stated by the P.W.22 that, the said mahazar as per Ex.P.27 has been drawn in DRI office, on which his signature is as per Ex.P.27(b) and the witnesses have given the statements before him, as per Exs.P.16, P.17, P.40 & P.41, respectively, and the correspondence made with the RTO was as per Ex.P.35, on which his signature is as per Ex.P.35(a) and also he identifies the accused persons.
83. During the time of trial, despite having issued sufficient process to the CWs.21, 23 to 26 & 31, they have absolutely failed to turn-up before this court and depose in favour of the prosecution in the witness-box, wherefore, in the absence of substantial grounds, the prayer of the learned Public Prosecutor has been rejected by the then learned Presiding Officer and dropped them and closed the prosecution's side.
84. On meticulous consideration of the entire depositions of the PWs.1 to 22, the PWs.2 & 3 being the substantial raid as-well- as seizure-mahazar witnesses and PWs.18 & 19 being a cargo delivery-boy as-well-as a driver of cargo delivery-tempo having absolutely turned hostile to the prosecution, it has utterly failed to establish Exs.P.1 to P.12 & P.22, P.23, P.28, P.34 & P.41 beyond the shadow of reasonable doubts. Apart from the same, the PWs.1 & 5 to 8 being the raid-team-members of DRI Intelligence Officers 74 SC No.301/2008 under the leadership of the P.W.1 and the P.W.4 being the complainant as-well-as the Senior Intelligence Officer and the PWs.9 to 11 being the other Intelligence Officers who are the circumstantial witnesses stated to have worked as per instructions of their higher-authorities, their entire depositions are prevailing with the major discrepancies discrepanting the very crux of the prosecution's tale creating the fatal doubts in the mind of this court with respect to the very genuinity of the prosecution's tale as there are plethora of contradictions emanating there-from. In addition to the same, none of the Intelligence Officers have investigated and collected the substantial information as to from which person exactly the said parcel came into India. Apart from the same, even by virtue of the versions of the P.W.1, the alleged parcel having been passed through the clearance of customs-duty as per the provisions of Customs Act in India, the question of illegality therein, does-not arise at-all. When that is so, even the prosecution having failed utterly to establish regarding the receiving of the alleged parcel and the alleged possession of the said parcel containing the alleged fake-notes in possession of the accused No.1 and also having failed regarding the intention of the accused No's.1 & 2 to circulate the alleged fake-notes knowing- fully-well that they are fake-notes, as if they are the genuine notes, unlawfully, the prosecution has utterly failed to establish all the 75 SC No.301/2008 ingredients of the alleged offences leveled against the accused persons. Apart from the same, even the P.W.4 being the complainant as-well-as the Senior Intelligence Officer has also miserably failed to explain the reasons for the inordinate delay of 8 days in lodging the complaint as per Ex.P.18, which is absolutely fatal to the prosecution's case. Even, the DRI Officers have failed to comply the provisions of Sections 100(4) & (8) of Cr.P.C., with respect to securing of the independent and respectable inhabitants of the locality of the alleged spot of incident. Even though the very depositions of the PWs.15 to 17 & 20 have remained un-vibrated, unchallenged and without cross-examination, they being merely in the fashion of very remote evidence, they do-not come to the aid of the prosecution absolutely and independently. Even, the entire depositions of the PWs.1 & 4 to 11 who are all the official- witnesses of the same office, their depositions do-not deserve to be relied-upon absolutely to target the accused No's.1 & 2 for the conviction, in the absence of substantial corroborative material in view of the said principles of laws, as stated herein before supra. Even, the alleged confession-statements stated to have been recorded from the accused No.2 & 1 as per Exs.P.15, P.29 & P.33, they also do-not come to the aid of the prosecution in view of the settled principles of laws as rightly relied-upon by the learned counsel for the accused. Merely basing on the very depositions of 76 SC No.301/2008 the PWs.20 to 22 who are the police official and officers, this court cannot arrive-at a conclusion to target the accused No's.1 & 2 for the conviction in the lack of substantial chunk of independent and substantial material.
85. To sum-up, in overall, the prosecution having utterly failed to establish to inter-connect the link between the series of instances and events in the case to form the complete circle under a chain-link, to constitute the alleged offences and also failed to establish the nexus of the accused No's.1 & 2 with the prosecution's tale in connection with the alleged offences and also failed to establish regarding the alleged possession and intention of the accused No.1 & 2 and also having failed to explain the just and reasonable reasons in respect of the inordinate delay of 8 days in lodging the complaint as per Ex.P.18, and in view of the PWs.2, 3, 18 & 19 having absolutely turned hostile to the prosecution and the very depositions of the Intelligence Officers i.e., PWs.1 & 4 to 11 prevailing with the major discrepancies with the plethora of contradictions, their depositions being worthless, it is clear that the accused No's.1 & 2 deserve for the benefit of the same, wherefore, they cannot be targeted for the conviction as the prosecution has utterly failed in establishing the alleged common intention of the accused No's.1 & 2 to use the alleged fake- currency-notes of Rs.1,000/- and Rs.500/- denominations as if the 77 SC No.301/2008 genuine notes under a conspiracy between themselves and also the question of pretending and posing by the accused No.1 himself as S. Prakash by way of forging the driving-licence for the purpose of cheating; the question of convicting the said accused No's.1 & 2 does-not arise at-all under the circumstances prevailing herein for the reasons discussed and stated herein before supra.
86. Therefore, under all these circumstances, I am of the clear opinion that, the entire case of the prosecution is prevailing with the major discrepancies, discrepanting the entire case of the prosecution, creating the fatal doubts in the mind of this court, without any alimentation. Therefore, the benefit of such doubts will have to be given to the accused persons by virtue of a well- settled principle of criminal jurisprudence. Under all these circumstances, even it is highly impossible and improbable to ameliorate regarding the alleged imputations against the accused No's.1 & 2. Therefore, in view of all these reasons, I am of the clear opinion that, the prosecution has utterly failed to establish and prove the Point No's.1 to 6 beyond the shadow of all the reasonable doubts. Hence, I am inclined to answer Point No's.1 to 6 in the 'Negative'.
87. Point No.7:- For the reasons discussed at much-length while answering the Point No's.1 to 6 in the Negative herein before supra, I am inclined to proceed to pass the following: 78 SC No.301/2008
ORDER The prosecution has utterly failed to prove the guilt against the Accused No's.1 & 2 and therefore, the Accused No's.1 & 2 are found not guilty for having committed the offences U/Secs.419, 420, 468, 489(B), 489(C) & 120(B) r/w Section 34 of I.P.C.
In exercise of the powers conferred-upon me U/Sec.232 r/w Sec.235(1) of Cr.P.C., I hereby acquit the Accused No.1 by name, Anand Ashoka Mantheiro @ Ananda Mantheiro @ Ashok @ Prakash @ Prashanth, S/o Francies Mantharo, Aged 30 years, Residing at Karopadi House, Vijayadka, Dakshina Kannada District; and Accused No.2 by name, Abdul Rasheed Hassainar Putturu @ Abdul Rasheed @ Abdul Hameed, S/o. Ahamed Hassainar, Aged 33 years, R/a. Mugali House, Kaarapodi Village, Buntwala Taluk, Dakshina Kannada District, and set them to liberty forthwith in this case.
The Accused No's.1 & 2 are hereby discharged of their bail-bonds, along-with their sureties.
The seized properties marked at MO No's.1 to 44, namely, Three-bundles (each-bundle containing 100 notes) of 300 notes of face-value of fake-currency notes of Rs.1,000/-, Eight-bundles (each-bundle containing 100 notes) of 800 notes of face-value of fake-currency notes of Rs.500/-, Driving-licence of Prakash, Driving-licence of Ananda Mantharo/Accused No.1, DCB Visa-Card, Credit-
card of UTI Bank, Credit-card of ICICI Bank, Arogya-card of Manipal Hospital, 4 Sim-cards (2 Airtel Sim-cards, 1 BSNL 79 SC No.301/2008 Sim-card & 1 Hutch Sim-card), 3 Sim-cards of Hutch company, 3 mobile phones, Blanket, 2 Lungies, Box containing a chocolate, 6 Johnson Soaps, 2 Almond packets, 6 Lux soaps, 2 Pista packets, Johnson Baby Powder, Johnson Baby Lotion Bottle, Johnson Baby Cream, Milk Powder Box, Captain Oats Box, Oster Chocolate Wafers Box, Lipton Carton Box, Baahar Washing Carton, Club Carton, Club Original Carton, Plastic-cover, Expert Carton and 3 Currency-notes of Rs.100/- denomination are hereby ordered to be preserved, maintained and retained by the concerned, wherever they are in the same position, till the disposal of the other cases pending against the co-accused persons of these Accused No's.1 & 2, and in case if no any other cases are pending against any other co-accused persons, then the said MO No's.1 to 11 & 42 to 44 being the fake-currency-notes as detailed herein before supra are hereby ordered to be destroyed by sending the same to the concerned Authorities of Reserve Bank of India, Bengaluru, in due process of procedure and the MO No's.20 to 22 being the 3 mobile handsets are hereby ordered to be confiscated to the Exchequer of the State Government, and the remaining MO No's.12 to 19 & 21 to 41 being worthless articles are hereby ordered to be destroyed after the efflux of the appeal period.
(Dictated to the Judgment Writer, transcribed and typed by him and after corrections, printout taken and then pronounced and signed by me in the open Court, on this the 6th day of May, 2016) (G.D.Mahavarkar) LI Addl. City Civil & Sessions Judge, Bengaluru City.
80 SC No.301/2008APPENDIX List of the witnesses examined for the prosecution side:
P.W.1 H. Venkatesh P.W.2 Paramesh P.W.3 Naveen P.W.4 M. Eshaq P.W.5 Girish Vaidya P.W.6 Karthikeyan P.W.7 Prashanth P.S. P.W.8 Biju Hampi P.W.9 M. Mallikarjuna P.W.10 D. Chandrashekar P.W.11 Vishwendra Rao P.W.12 J. Utthamman P.W.13 M.H. Yaragudi P.W.14 Manjunath P.W.15 Smt Bhuvaneshwari @ Ramaa Shivakumaran P.W.16 M.N. Gopalakrishna P.W.17 S.B. Surendrappa P.W.18 Mallikarjuna P.W.19 Madesha P.W.20 R. Krishnappa P.W.21 H.B. Rajanna P.W.22 Muralidhar
List of documents exhibited for the prosecution side:
Ex.P.1 Mahazar. Ex.P.1(a) Signature of the P.W.1. Ex.P.1(b) Signature of the P.W.2. Ex.P.1(c) Signature of the P.W.3. Ex.P.1(d) Signature of the P.W.6. Ex.P.2 Annexure. Ex.P.2(a) Signature of the P.W.1. Ex.P.2(b) Signature of the P.W.3. Ex.P.3 Annexure. Ex.P.3(a) Signature of the P.W.1. Ex.P.3(b) Signature of the P.W.3. Ex.P.3(c) Signature of the P.W.5. Ex.P.3(d) Signature of the P.W.7. Ex.P.4 Annexure. Ex.P.4(a) Number skipped. Ex.P.4(b) Signature of the P.W.3. Ex.P.4(c) Signature of the P.W.5. 81 SC No.301/2008 Ex.P.5 Annexure. Ex.P.5(a) Number skipped. Ex.P.5(b) Signature of the P.W.3. Ex.P.5(c) Signature of the P.W.5. Ex.P.6 Annexure. Ex.P.6(a) Number skipped. Ex.P.6(b) Signature of the P.W.3. Ex.P.6(c) Signature of the P.W.5. Ex.P.7 Annexure. Ex.P.7(a) Number skipped. Ex.P.7(b) Signature of the P.W.3. Ex.P.7(c) Signature of the P.W.5. Ex.P.8 Annexure. Ex.P.8(a) Signature of the P.W.1. Ex.P.8(b) Signature of the P.W.3. Ex.P.8(c) Signature of the P.W.8. Ex.P.9 Hall Mark Cargo Receipt. Ex.P.10 Airport Authority Receipt. Ex.P.11 TR Challan. Ex.P.12 Service Receipt. Ex.P.13 Lady-photo. Ex.P.14 Gas-receipt. Ex.P.15 Own-handwriting statement of the Accused No.2. Ex.P.15(a) Signature of the P.W.1. Ex.P.15(b) Signature of the Accused No.2/Rasheed. Ex.P.15(c) Signature of the P.W.5. Ex.P.16 Statement of Paramesh. Ex.P.17 Statement of the P.W.3. Ex.P.18 Complaint. Ex.P.18(a) Signature of the P.W.4. Ex.P.18(b) Signature of the P.W.21. Exs.P.19 &][ Authorization-letters. P.20 ][ Ex.P.21 Mahazar. Ex.P.21(a) Signature of the P.W.4. Ex.P.21(b) Signature of the P.W.9. Ex.P.22 Mahazar. Ex.P.22(a) Signature of the P.W.4. Ex.P.22(b) Signature of the P.W.12. Ex.P.22(c) Signature of the P.W.14. Ex.P.23 Annexure to Mahazar. Ex.P.23(a) Signature of the P.W.4. Ex.P.23(b) Signature of the P.W.10. Ex.P.23(c) Signature of the P.W.12. Ex.P.23(d) Signature of the P.W.14. Ex.P.24 Arrest-memo. 82 SC No.301/2008 Ex.P.24(a) Signature of the P.W.4. Ex.P.25 Statement of Smt Sunitha W/o Jaganath. Ex.P.25(a) Signature of the P.W.4. Ex.P.25(b) Signature of the P.W.6. Ex.P.26 Statement of Mahadevan. Ex.P.26(a) Signature of the P.W.4. Ex.P.26(b) Signature of the P.W.6. Ex.P.27 Mahazar. Ex.P.27(a) Signature of the P.W.5. Ex.P.27(b) Signature of the P.W.22. Ex.P.28 Statement of Mallikarjuna. Ex.P.28(a) Signature of the P.W.5. Ex.P.28(b) Signature of the P.W.11. Ex.P.29 Statement of the Accused No.1. Ex.P.29(a) Signature of the P.W.5. Ex.P.29(b) Signature of the P.W.11. Ex.P.30 Signature of the P.W.7. Ex.P.31 Mahazar. Ex.P.31(a) Signature of the P.W.7. Ex.P.32 Statement of the P.W.8. Ex.P.33 Statement of the Accused No.1. Ex.P.33(a) Signature of the P.W.11. Ex.P.34 Statement of M.H.Yaragudi. Ex.P.34(a) Signature of the P.W.13. Ex.P.35 Requisition of the police-letter. Ex.P.35(a) Number skipped. Ex.P.36 Letter of RTC. Ex.P.36(a) Signature of the P.W.16. Ex.P.36(b) Photo of Bhuvaneshwari. Ex.P.37 Extract of Driving-Licence issued by the RTO, Mangalore. Ex.P.37(a) Signature of the P.W.17. Ex.P.38 Xerox copy of Run-Sheet. Ex.P.39 Xerox copy of Unloading-receipt. Ex.P.40 Statement of Mallikarjuna S/o Maheshwarappa. Ex.P.41 Portion of the statement in Ex.P.40. Ex.P.42 First Information Report. Ex.P.42(a) Signature of the P.W.21. Ex.P.43 Opinion-letter. Ex.P.43(a) Signature of the P.W.22. Ex.P.44 Opinion-letter. Ex.P.44(a) Signature of the P.W.22. Ex.P.45 Currency-report. Exs.P.46 &][ Currency-notes reports. P.47 ][ 83 SC No.301/2008
List of material objects marked for the prosecution side:
MO No's.1 ][ Three-bundles (each-bundle containing 100 notes) to 3 ][ of 300 notes of face-value of fake-currency notes of Rs.1,000/-.
MO No's.4 ][ Eight-bundles (each-bundle containing 100 notes) to 11 of 800 notes of face-value of fake-currency notes of Rs.500/-.
MO No.12 Driving-licence of Prakash.
MO No.13 Driving-licence of Ananda Mantharo/Accused No.1.
MO No.14 DCB Visa-Card.
MO No.15 Credit-card of UTI Bank.
MO No.16 Credit-card of ICICI Bank.
MO No.17 Arogya-card of Manipal Hospital.
MO No.18 4 Sim-cards (2 Airtel Sim-cards, 1 BSNL Sim-card &
1 Hutch Sim-card.
MO No.19 3 Sim-cards of Hutch company.
MO No's.20 ][ 3 Mobile-phones.
to 22 ][
MO No.23 Blanket.
MO No.24 2 Lungies.
MO No.25 Box containing a chocolate.
MO No.26 6 Johnson Soaps.
MO No.27 2 Almond packets.
MO No.28 6 Lux soaps
MO No.29 2 Pista packets.
MO No.30 Johnson Baby Powder.
MO No.31 Johnson Baby Lotion Bottle.
MO No.32 Johnson Baby Cream.
MO No.33 Milk Powder Box.
MO No.34 Captain Oats Box.
MO No.35 Oster Chocolate Wafers Box.
MO No.36 Lipton Carton Box.
MO No.37 Baahar Washing Carton.
MO No.38 Club Carton.
MO No.39 Club Original Carton.
MO No.40 Plastic-cover.
MO No.41 Expert Carton.
MO No's.42 ][ 3 Currency-notes of Rs.100/- denomination.
to 44 ][ List of witnesses examined for the defence side:
- NIL -84 SC No.301/2008
List of documents exhibited for the defence side:
- NIL -
LI Addl. City Civil & Sessions Judge, Bengaluru City.85 SC No.301/2008
(Judgment pronounced in the open court. Operative-portion of the same is extracted as under) ORDER The prosecution has utterly failed to prove the guilt against the Accused No's.1 & 2 and therefore, the Accused No's.1 & 2 are found not guilty for having committed the offences U/Secs.419, 420, 468, 489(B), 489(C) & 120(B) r/w Section 34 of I.P.C.
In exercise of the powers conferred-
upon me U/Sec.232 r/w Sec.235(1) of Cr.P.C., I hereby acquit the Accused No.1 by name, Anand Ashoka Mantheiro @ Ananda Mantheiro @ Ashok @ Prakash @ Prashanth, S/o Francies Mantharo, Aged 30 years, Residing at Karopadi House, Vijayadka, Dakshina Kannada District; and Accused No.2 by name, Abdul Rasheed Hassainar Putturu @ Abdul Rasheed @ Abdul Hameed, S/o. Ahamed Hassainar, Aged 33 years, R/a. Mugali House, Kaarapodi Village, Buntwala Taluk, Dakshina Kannada District, and set them to liberty forthwith in this case.
The Accused No's.1 & 2 are hereby discharged of their bail-bonds, along-with their sureties.
The seized properties marked at MO No's.1 to 44, namely, Three-bundles (each-bundle containing 100 notes) of 300 notes of face-value of fake-currency notes of Rs.1,000/-, Eight-bundles (each-
bundle containing 100 notes) of 800 notes of face-value of fake-currency notes of Rs.500/-, Driving-licence of Prakash, Driving-licence of Ananda Mantharo/Accused No.1, DCB Visa-Card, Credit-card of UTI Bank, Credit-card of ICICI Bank, Arogya-card of Manipal Hospital, 4 Sim-cards (2 Airtel Sim-cards, 1 BSNL Sim-card & 1 Hutch Sim-card), 86 SC No.301/2008 3 Sim-cards of Hutch company, 3 mobile phones, Blanket, 2 Lungies, Box containing a chocolate, 6 Johnson Soaps, 2 Almond packets, 6 Lux soaps, 2 Pista packets, Johnson Baby Powder, Johnson Baby Lotion Bottle, Johnson Baby Cream, Milk Powder Box, Captain Oats Box, Oster Chocolate Wafers Box, Lipton Carton Box, Baahar Washing Carton, Club Carton, Club Original Carton, Plastic-cover, Expert Carton and 3 Currency-notes of Rs.100/-
denomination are hereby ordered to be preserved, maintained and retained by the concerned, wherever they are in the same position, till the disposal of the other cases pending against the co-
accused persons of these Accused No's.1 & 2, and in case if no any other cases are pending against any other co-accused persons, then the said MO No's.1 to 11 & 42 to 44 being the fake-currency-notes as detailed herein before supra are hereby ordered to be destroyed by sending the same to the concerned Authorities of Reserve Bank of India, Bengaluru, in due process of procedure and the MO No's.20 to 22 being the 3 mobile handsets are hereby ordered to be confiscated to the Exchequer of the State Government, and the remaining MO No's.12 to 19 & 21 to 41 being worthless articles are hereby ordered to be destroyed after the efflux of the appeal period.
LI Addl. City Civil & Sessions Judge, Bengaluru City.
87 SC No.301/2008