Supreme Court - Daily Orders
Shivdasan N.K. vs State Of Kerala on 10 April, 2019
Bench: S.A. Bobde, Sanjay Kishan Kaul, Indira Banerjee
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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1583 OF 2009
SHIVDASAN N.K. APPELLANT(S)
VERSUS
STATE OF KERALA RESPONDENT(S)
O R D E R
The appellant viz., Shivdasan N.K. was accused no.1 in a criminal prosecution launched against him and others under Section 489C of the Indian Penal Code (for short, the ‘IPC’). He was convicted under section 489C IPC and sentenced to undergo rigorous imprisonment for three years by learned Additional District and Sessions Judge, Fast Track (ADHOC-II), Kozhikode, for possession of 11, 14 and 1 forged and counterfeit currency notes of Rs.500/-
The appellant was in Room No.303 of Coronation Lodge, Kozhikode, when he was found in possession of Signature Not Verified Digitally signed by SANJAY KUMAR Date: 2019.05.08 13:56:28 IST these counterfeit currency notes.
Reason:
Apparently, it was the contention of the appellant that the prosecution did not establish that 2 the accused persons procured the counterfeit currency notes from a particular place and a particular person. The appellate court observed that the prosecution ought to have conducted such an investigation but since the allegation was limited to section 489C IPC viz., being found in possession of such currency notes, the allegation is proved. Thus, having been found in possession, the appellant’s conviction was maintained.
Mr. Dushyant Dave, learned Senior Counsel appearing on behalf of the appellant, points out two affidavits filed before this Court for the first time. One affidavit is of Dr. K.N. Raghvan presently working as principal Commissioner of Central Exercise and GST, Mumbai, and another of Mr. P.N. Devadasan presently working as Principal Commissioner of Income Tax 8, Chennai.
The aforesaid high ranking officers have stated on oath that during the period from 1995 to July 2000, they had engaged the services of the appellant viz., Shivdasan N.K. as an Informer for getting information about various smuggling syndicates operating in Malappuram and Calicut Districts of Kerala. This information was sought in respect of gangs involving 3 in golds and currency smuggling, hawala operations, trafficking of narcotic drugs and involvement of counterfeit currency notes.
Dr. K.N. Raghavan in his affidavit states that appellant Sivadasan N.K. had given valuable information about several smuggling syndicates that had helped DRI to effect seizures of gold, foreign currency and narcotic drugs on the basis of which the accused were apprehended. He has further stated that he is willing to give evidence on oath as to the veracity of his statement and as to the true possession of the appellant – accused.
The affidavit of Mr. P.N. Devadasan has the same tenor. It is not possible for us to make any comment either way, as to the truth of the statements contained in the aforesaid affidavits or the impact of such statements would have on the conviction of the appellant.
However, ex debito justitiae we consider it of the utmost importance that the appellant should be allowed to lead evidence since, if what is brought on record is the truth, it would mean that he was working for the Government of India and that he was planted by the DRI to pose genuine purchaser of fake currency. 4 This, if established, would tend to exonerate the appellant without blemish.
The only course open to this Court in such situation seems to be that the appellant be allowed to lead additional evidence by making an appropriate application to the appellate court under Section 391 of the Code of Criminal Procedure (for short, the ‘Cr.P.C.’). The appellate court shall after giving an opportunity to the respondent-State, allow the said application and prohibit the appellant to lead evidence of two witnesses who have sworn affidavits before this Court.
Mr. Nishe Rajen Shonker, learned counsel appearing for the respondent-State, has however opposed the aforesaid application on the ground that such a contention was not advanced before the trial court as also the appellate court. That may be correct. However, it is possible that such a contention was not advanced in view of the sensitivity of the matter and the terms of engagement of the appellants.
Hence, we allow this appeal, set aside the impugned order passed by the High Court and in exercise of this Court’s power under Article 142 of 5 the Constitution of India, remand the matter back to the appellate court for taking additional evidence on record in accordance with law.
We further direct that the appellant shall remain on bail till the matter is decided by the appellate court.
.....................J [S.A. BOBDE] .....................J [SANJAY KISHAN KAUL] .....................J [INDIRA BANERJEE] NEW DELHI;
APRIL 10, 2019.
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ITEM NO.116 COURT NO.2 SECTION II-B
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No.1583/2009
SHIVDASAN N.K. Appellant(s)
VERSUS
STATE OF KERALA Respondent(s)
Date : 10-04-2019 This appeal was called on for hearing today. CORAM :
HON'BLE MR. JUSTICE S.A. BOBDE HON'BLE MR. JUSTICE SANJAY KISHAN KAUL HON'BLE MS. JUSTICE INDIRA BANERJEE For Appellant(s) Mr. Dushyant Dave, Sr. Adv.
Mr. Santosh Krishnan, Adv. Mr. Faisal M. Aboobacker, Adv. Ms. Lakshmi Sree P., Adv.
Mr. Zulfiker Ali P. S, AOR For Respondent(s) Mr. Nishe Rajen Shonker, AOR Mr./Ms. Anu K. Joy, Adv.
Mr. Alim Anvar, Adv.
Mr. Reegan S. Bel, Adv.
UPON hearing the counsel the Court made the following O R D E R The appeal is allowed in terms of the signed order. We further direct that the appellant shall remain on bail till the matter is decided by the appellate court.
(SANJAY KUMAR-II) (INDU KUMARI POKHRIYAL) COURT MASTER (SH) ASSISTANT REGISTRAR (Signed Order is placed on the file)